NRB PET E323 OF 2024-DEBT-DR.MAGARE GIKENYI & MATINDI VS AG-TASKFORCE PUBLIC DEBT & 17 OTHERS

REPUBLIC OF KENYA 1
IN HIGH COURT OF KENYA AT NAIROBI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION, MILIMANI NAIROBI
PETITION NO. E 323 OF 2024
IN THE MATTER OF: THE ILLEGAL, IRREGULAR AND UNCONSTITUTIONAL

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 5TH JULY 2024
IN THE MATTER OF: ARTICLES 1, 2, 3(1), 10, 19, 20, 21, 22, 23, 25, 47, 48,
50(1), 73, 74, 75, 93, 94, 95, 96, 129, 130, 131, 132,
135, 152(1), 156, 159, 162(1), 165(1), (3)(A, B AND (D)(I –
III)), 201, 211, 212, 213, 214, 225, 226, 229, 232(1 AND
2), 248, 249(1 AND 2), 252, 253, 254, 258(1 AND 2(C)),
259(1) AND 260.
IN THE MATTER OF: ALLEGED VIOLATIONS OF OR THREATS OF
VIOLATIONS OF ARTICLES 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 AND 3), 259 AND
260 OF THE CONSTITUTION OF KENYA
IN THE MATTER OF: THE CONSTITUTIONAL VALIDITY OF EXECUTIVE
ORDER NO. 4 OF 2024, PUBLISHED AT NAIROBI ON
05.07.2024, AS GAZETTE NOTICE NO. 8261 OF 2024.
THE CONSTITUTIONAL VALIDITY OF PRESIDENTIAL
TASKFORCE ON FORENSIC AUDIT OF PUBLIC DEBT, AS
NOTIFIED VIDE GAZETTE NOTICE NO. 8261 OF 2024,
DATED 05.07.2024.
IN THE MATTER OF: IN THE MATTER OF RULE 4, 10, 11, 13 OF THE

CONSTITUTION OF KENYA(SUPERVISORY
JURISDICTION AND PROTECTION OF FUNDAMENTAL
FREEDOMS)- HIGH COURT PRACTICE AND PROCEDURE
RULES 2013)
IN THE MATTER OF: DOCTRINES OF SUPREMACY OF THE CONSTITUTION
OF KENYA, BILL OF RIGHTS,CONSTITUTIONALISM, RULE
OF LAW AND LEGITIMATE EXPECTATIONS
BETWEEN
DR.MAGARE-GIKENYI B. ……………..………………………..…….. 1ST PETITIONER
ELIUD KARANJA MATINDI ……………………………………………. 2ND PETITIONER
=VERSUS=
HON.ATTORNEY-GENERAL ………………..……….……........... 1ST RESPONDENT
Page 1 of 6
PRESIDENTIAL TASKFORCE ON FORENSIC AUDIT OF
PUBLIC DEBT ………………………………………………………….. 2ND RESPONDENT
2
CABINET SECRETARY,MINISTRY OF TREASURY &
ECONOMIC PLANNING……………………………………………… 3RD RESPONDENT
AUDITOR GENERAL……………….……..………….………………. 4TH RESPONDENT
NANCY ONYANGO……………………………………….………..….. 5TH RESPONDENT
PROF.LUIS G. FRANCESCHI………………………………………. 6TH RESPONDENT
CPA PHILIP KAIKAI………………………………………………….. 7TH RESPONDENT
FAITH ODHIAMBO……………………………………………………. 8TH RESPONDENT
LAW SOCIETY OF KENYA (LSK)………………………………….. 9TH RESPONDENT
ENG.SHAMMAH KITEME……………………………………………. 10TH RESPONDENT
VINCENT KIMOSOP………………………………………………….. 11TH RESPONDENT
INSTITUTE OF CERTIFIED PUBLIC ACCOUNTANTS OF
KENYA(ICPAK)…………………………………………………………. 12TH RESPONDENT
INSTITUTE OF ENGINEERS OF KENYA (IEK)…………………. 13TH RESPONDENT
DR.ABRAHAM RUGO…………………………………………………. 14TH RESPONDENT
DR.AARON THEGEYA…………………………………………......... 15TH RESPONDENT
AND
CONTROLLER OF BUDGET.…….……..………….……. 1ST INTERESTED PARTY
KATIBA INSTITUTE……………….……..…………….…. 2ND INTERESTED PARTY
KITUO CHA SHERIA………………………………………. 3RD INTERESTED PARTY
OPERATION LINDA JAMII……………..……….……….. 4TH INTERESTED PARTY
CERTIFICATE OF URGENCY
I DR.MAGARE GIKENYI BENJAMIN (MBChB(UoN), Mmed(Mu), FCS(ECSA)

Gen.Surg,Cert,HLM(Washington University) of ID 23290775 , P.O Box 1805-20100
Nakuru, being Kenyan Medic Consultant Trauma and General Surgeon, Nakuru
resident, adult citizen of Kenya, THE 1ST PETITIONER in this case, and; whose
address of service for the purpose of this Petition is WITH the consent and
permission of my co-petitioner; DO HEREBY CERTIFY this matter to be extremely
urgent. The nature of the urgency being that:
1) THAT The president of the republic of Kenya(hereby represented by the Attorney

General(1St respondents) herein purportedly Established/appointed a
PRESIDENTIAL TASKFORCE ON FORENSIC AUDIT OF PUBLIC DEBT
through executive order no. 4 through gazette notice no. 8261 Vol.
CXXVI—No. 97 on 5TH July 2024 to ostensibly audit the public debt within
90 days or more and report back to the President. This actions and/or
omissions herein usurps the mandate of independent office of the auditor
general and is therefore unconstitutional ab initio by dint or article
Page 2 of 6
229(4)(g) as read with article 2, 3,10(2), 73, 75, 94, 95, 96, 131(2)(a)&(e), 3
201, 226, 232, 248, 249, 252 & 254 of the constitution(2010).
2) THAT Article 229 of the Constitution of Kenya 2010 establishes the office of the
Auditor-General, whose mandate inter alia includes auditing public debt.Article
229(4) specifically requires the Auditor-General to audit the public debt within
six months after the end of each financial year. Additionally, Article 226 provides
that the accounts of all governments and state organs must be audited by the
Auditor-General. Article 229(4) states quote:
“(4) Within six months after the end of each financial year, the Auditor-
General shall audit and report, in respect of that financial year, on—
a) the accounts of the national and county governments;
b) the accounts of all funds and authorities of the national and county
governments;
c) the accounts of all courts;
d) the accounts of every commission and independent office established
by this
e) Constitution;
f) the accounts of the National Assembly, the Senate and the county
assemblies;
g) the accounts of political parties funded from public funds;
h) the public debt; and
i) the accounts of any other entity that legislation requires the Auditor
General to audit.”
3) THAT further the work of auditing public debt is a constitutionally mandated

function of the Auditor-General and not any task force appointed by the
executive or any other person.The Office on Public Debt Management, headed by
a Director-General at the Treasury and funded by public money, should provide
details of public debt to the Auditor- General for forensic audit by taking
cognizance of article 201 of the constitution on the need to have prudent
utilization of scarce public financial resources.
Page 3 of 6
4) THAT this position is further cemented in a recent Kitale High Court 4
constitutional petition in the matter of Kevin Otieno Ondago v Natembeya & 15
others; Auditor General & another (Interested Parties) (Constitutional Petition E003
of 2023) [2023] KEHC 22268 (KLR) (19 September 2023) (Judgment) Neutral
citation: [2023] KEHC 22268 (KLR) where the court through Hon. Justice Mrima
quashed a purported task forced formed by the H.E. George Natembeya,
Governor County Government Of Trans-Nzoia to purportedly audit the public
debt of the county , and the court asserted that the Governor could request the
Auditor-General to conduct a forensic audit.
5) THAT the office of the auditor-general is an independent office pursuant to

article 248 & 249 of CoK and that duplicating roles is a waste of scarce public
resources since the task force will be essentially be performing roles of existing of
existing public offices, contrary to article 201(d) of the constitution(2010).
6) THAT The Petitioners impugn the constitutional validity of the EXECUTIVE

ORDER NO. 4 OF 2024 in its entirety. That H.E the President of the Republic,
violated numerous provisions of the Constitution and the law in establishing the
PRESIDENTIAL TASKFORCE ON FORENSIC AUDIT OF PUBLIC DEBT, its
membership, Terms of Reference, duration and secretariat.
7) THAT Owing to these violations, the Petitioners submit that the EXECUTIVE
ORDER NO. 4 OF 2024, published as Kenya Gazette Notice No. 8261 of 2024 on
05.07.2024, establishing the PRESIDENTIAL TASKFORCE ON FORENSIC AUDIT
OF PUBLIC DEBT, is unconstitutional, null and void.
8) THAT in accordance with Article 2(4) of the Constitution, H.E., the President,
acted in contravention of the Constitution when he issued the EXECUTIVE
ORDER NO. 4 OF 2024, dated 05.07.2024 and published as Kenya Gazette
Notice No. 8261 of 2024 of the same date, establishing a PRESIDENTIAL
TASKFORCE ON FORENSIC AUDIT OF PUBLIC DEBT.
9) THAT if this honourable court does not stop the illegal actions and/omissions
done by the president and/or respondents then constitutional violations will
Page 4 of 6
continue against principals of good governance and public money will be lost with 5
no probability of recovering the same.
10) THAT article 3 of the constitution states that every person has an obligation to
respect, uphold and defend this Constitution.
11) THAT from the foregoing, this action of the respondents will lead to inter alia
loss of public confidence, wastage of public resources and outright abuse of
political power to the detriment of rule of law and constitutionalism
12) THAT It is important to maintain constitutionalism, rule of law, Law and
Order, good governance, non-discrimination and protecting of the
constitution.This matter is of Public interest.
13) It is therefore imperative that this matter be placed before court/Judge and
orders and directions issued accordingly to preserve and safeguard public
interests.
DATED at NAKURU this 7TH day of JULY 2024 (saba saba liberation day)
1ST PETITIONER
ELIUD KARANJA MATINDI

2ND PETITIONER
Page 5 of 6
DRAWN & FILED BY:
DR. MAGARE GIKENYI BENJAMIN AND ELIUD KARANJA MATINDI
6
DR. MAGARE GIKENYI J BENJAMIN,Consultant Trauma and General Surgeon
MBChB (UoN), Mmed (Mu), FCS(ECSA), Cert, HLM (Washington University)
Resma Plaza, 2nd Floor, Dr.Magare-Gikenyi Surgery Clinic
P.O Box 1805-20100
NAKURU
(a) For the 1st Petitioner, DR.MAGARE GIKENYI J BENJAMIN SURGERY CLINIC,
2nd Floor, Resma Plaza, NAKURU
Email address - magaregikenyi@yahoo.com.
(b) For the 2nd Petitioner, ELIUD KARANJA MATINDI –

Email address bavance13@gmail.com.
TO BE SERVED UPON:
1) The Hon. Attorney-General
Attorney-General’s Chambers
Sheria House, 7th Floor
Harambee House
P.O. Box 40112-00100
NAIROBI
Email: communications@ag.go.ke
2) Presidential Taskforce on Forensic Audit Of Public Debt

3) The Cabinet Secretary, The National Treasury and Economic Planning
Email: cs@treasury.go.ke, ps@treasury.go.ke
4) Auditor General , Email: info@oagkenya.go.ke
5) The Controller Of Budget- cob@cob.go.ke ,info@cob.go.ke
6) Law Society Of Kenya email: lsk@lsk.or.ke
7) Katiba Institute, Email: info@katibainstitute.org
8) Kituo Cha Sheria , Email: info@kituochasheria.or.ke
9) Operation Linda Jamii , email: fredotbs@gmail.com
10) The Auditor General-info@oagkenya.go.ke
11) Nancy Onyango
12) Prof.Luis G. Franceschi
13) Cpa Philip Kaikai
14) Faith Odhiambo
15) Eng.Shammah Kiteme
16) Vincent Kimosop
17) Institute Of Certified Public Accountants Of Kenya(Icpak)
18) Law Society Of Kenya (Lsk)
19) Institute Of Engineers Of Kenya (Iek)
20) Dr.Abraham Rugo
21) Dr.Aaron Thegeya
Page 6 of 6
REPUBLIC OF KENYA 7
PETITION NO. E323 OF 2024

50(1), 73, 74, 75, 93, 94, 95, 96, 129, 130, 131, 132,
135, 152(1), 156, 159, 162(1), 165(1), (3)(A, B AND (D)(I –
III)), 201, 211, 212, 213, 214, 225, 226, 229, 232(1 AND
2), 248, 249(1 AND 2), 252, 253, 254, 258(1 AND 2(C)),
259(1) AND 260.
73, 74, 75[1], 93, 94, 95, 96(1), 129, 131, 132, 156, 159,
201, 226(3), 229, 232, 248, 249, 254(2 AND 3), 259 AND
DATED 05.07.2024.

RULES 2013)
BETWEEN
=VERSUS=
Page 1 of 10
8
AND
NOTICE OF MOTION
PURSUANT TO Articles 20, 21, 22, 23[3], 48, 50[1], 159[2][d], 165, 258 and
259[1] of the Constitution of Kenya, Rules 3, 4, 8, 10, 11, 13, 15, 18 and 19 of
the Constitution of Kenya [Protection of Rights and Fundamental Freedoms]
Practice and Procedure Rules, 2013, and all other enabling provisions of the
Law.]
TAKE NOTICE that this honorable Court will be moved on the…….day of ……… 2024
at 9:00 in the forenoon or soon thereafter as the matter may be heard upon an
application by counsel for the Petitioners/Applicant for AN ORDER THAT:-
(a) This Application be certified as extremely urgent and deserving to be

heard ex parte in the first instance and service hereof be dispensed with
as its object will be defeated unless it is so certified and heard
expeditiously.
Page 2 of 10
9
(b) Pending the hearing and determination of this Application, the
Honourable Court be pleased to issue a conservatory order suspending
EXECUTIVE ORDER NO. 4 and/or GAZETTE NOTICE NO. 8261 Vol.
CXXVI—No. 97 dated 5TH JULY 2024 published for the
formation/establishment/appointment of PRESIDENTIAL TASKFORCE ON
FORENSIC AUDIT OF PUBLIC DEBT
(c) Pending the hearing and determination of this Application, this

Honourable Court be pleased to issue an interim order prohibiting the
Respondents, either by themselves, anyone else acting at their behest,
instructions or directions or any other person whosoever, from taking
any action whatsoever pursuant to or in reliance on or in fulfillment of
any duty or obligation or implementation of EXECUTIVE ORDER NO. 4
and/or GAZETTE NOTICE NO. 8261 Vol. CXXVI—No. 97 of 5TH JULY 2024
published for the formation/establishment/appointment of
(d) THAT any other order/modification of my prayers in which this

honourable court may deem fit to grant for purposes of attaining Justice
for all Kenyans.
(e) Costs be provided for.
ON GROUNDS THAT:
1) THAT This matter is extremely urgent as, The president of the republic of
Kenya(hereby represented by the Attorney General(1St respondents) herein
purportedly Established/appointed a PRESIDENTIAL TASKFORCE ON
FORENSIC AUDIT OF PUBLIC DEBT through executive order no. 4 through
gazette notice no. 8261 Vol. CXXVI—No. 97 on 5TH July 2024 to ostensibly
audit the public debt within 90 days or more and report back to the
Page 3 of 10
President. This actions and/or omissions herein usurps the mandate of 10
independent office of the auditor general and is therefore unconstitutional
ab initio by dint or article 229(4)(g) as read with article 2, 3,10(2), 73, 75,
94, 95, 96, 131(2)(a)&(e), 201, 226, 232, 248, 249, 252 & 254 of the
constitution(2010).
2) THAT Article 229 of the Constitution of Kenya 2010 establishes the office of the
Auditor-General, whose mandate inter alia includes auditing public debt.Article
229(4) specifically requires the Auditor-General to audit the public debt within
six months after the end of each financial year. Additionally, Article 226 provides
that the accounts of all governments and state organs must be audited by the
Auditor-General. Article 229(4) states quote:
“(4) Within six months after the end of each financial year, the Auditor-
General shall audit and report, in respect of that financial year, on—
a) the accounts of the national and county governments;
b) the accounts of all funds and authorities of the national and county
governments;
c) the accounts of all courts;
d) the accounts of every commission and independent office established
by this
e) Constitution;
f) the accounts of the National Assembly, the Senate and the county
assemblies;
g) the accounts of political parties funded from public funds;
h) the public debt; and
i) the accounts of any other entity that legislation requires the Auditor
General to audit.”
3) THAT further the work of auditing public debt is a constitutionally mandated

function of the Auditor-General and not any task force appointed by the
executive or any other person.The Office on Public Debt Management, headed by
a Director-General at the Treasury and funded by public money, should provide
details of public debt to the Auditor- General for forensic audit by taking
Page 4 of 10
cognizance of article 201 of the constitution on the need to have prudent 11
utilization of scarce public financial resources.
4) THAT this position is further cemented in a recent Kitale High Court

constitutional petition in the matter of Kevin Otieno Ondago v Natembeya & 15
others; Auditor General & another (Interested Parties) (Constitutional Petition E003
of 2023) [2023] KEHC 22268 (KLR) (19 September 2023) (Judgment) Neutral
citation: [2023] KEHC 22268 (KLR) where the court through Hon. Justice Mrima
quashed a purported task forced formed by the H.E. George Natembeya,
Governor County Government Of Trans-Nzoia to purportedly audit the public
debt of the county , and the court asserted that the Governor could request the
Auditor-General to conduct a forensic audit.
5) THAT the office of the auditor-general is an independent office pursuant to

article 248 & 249 of CoK and that duplicating roles is a waste of scarce public
resources since the task force will be essentially be performing roles of existing of
existing public offices, contrary to article 201(d) of the constitution(2010).
6) THAT The Petitioners impugn the constitutional validity of the EXECUTIVE

ORDER NO. 4 OF 2024 in its entirety. That H.E the President of the Republic,
violated numerous provisions of the Constitution and the law in establishing the
PRESIDENTIAL TASKFORCE ON FORENSIC AUDIT OF PUBLIC DEBT, its
membership, Terms of Reference, duration and secretariat.
7) THAT Owing to these violations, the Petitioners submit that the EXECUTIVE
ORDER NO. 4 OF 2024, published as Kenya Gazette Notice No. 8261 of 2024 on
05.07.2024, establishing the PRESIDENTIAL TASKFORCE ON FORENSIC AUDIT
OF PUBLIC DEBT, is unconstitutional, null and void.
8) THAT in accordance with Article 2(4) of the Constitution, H.E., the President,
acted in contravention of the Constitution when he issued the EXECUTIVE
ORDER NO. 4 OF 2024, dated 05.07.2024 and published as Kenya Gazette
Notice No. 8261 of 2024 of the same date, establishing a presidential taskforce
on forensic audit of public debt.
Page 5 of 10
9) THAT if this honourable court does not stop the illegal actions and/omissions 12
done by the president and/or respondents then constitutional violations will
continue against principals of good governance and public money will be lost with
no probability of recovering the same.
10) THAT Granting the prayers in this Application will preserve the integrity of the
Constitution which the Petitioners believe has been violated and is threatened
with violation by the impugned actions/omissions , pending the hearing and
determination of the Application inter partes and the substantive petition, would
accord with Constitution.
11) THAT Conversely, in the absence of such prayers and in the event the Petition
is upheld, great harm would have been done to Constitution, including its
purposes, values and principles as set out in Article 10(2).
12) THAT It is in the interest of justice and the Constitution for the conservatory
orders requested herein are granted to protect the Constitution from gross
violation.This includes upholding the national values and principles of governance
including the rule of law, good governance, accountability and transparency and
protection of wastage of public funds.
13) THAT Granting conservatory orders as requested herein while the issues in
dispute in the Application are heard and determined would be of greater public
interest than allowing the impugned actions to be implemented while their
constitutional validity is under scrutiny.
14) THAT the court in Civil Application E314, E300 & E309 of 2023 & E296
of 2022 (Consolidated) stated that:
Where purported service is rendered in violation of the Constitution, it does

not require rocket science to fathom that it is not legitimate service
beneficial to the public. Service rendered in violation of the Constitution is
no service at all in the eyes of the law.”
Page 6 of 10
15) THAT In addition to the above and, as further enumerated in the Petition 13
accompanying this Application, the Petitioners allege extensive, gross violations of
the Constitution of Kenya and statutes by the Respondents.
16) THAT The Petitioners have a right of access to this Honourable Court to
safeguard their rights and those of other Kenyans, in the public interest, which
are in serious danger of infringement.
17) THAT The matters are of extreme public interest because the issues
complained of herein clearly contravene the Constitution and the law and are
contrary to public policy, more so the binding national values and principles of
governance as set out in Article 10 of the Constitution the rule of law, democracy
and participation of the people, good governance, integrity, transparency and
accountability and the equally additional cardinal principles set out in Article
259[1] of the Constitution.
18) THAT The deliberate violation of the Constitution and the law, as
demonstrated herein and in the accompanying Petition, must not be allowed to
continue.
19) THAT The textual authority that justifies the grant of conservatory orders and
temporary injunctions is to protect wastage of scarce public resources.The
fountainhead of the orders sought herein is Article 23[3] of the Constitution, on
the authority of courts to uphold and enforce the Bill of Rights.
20) THAT By providing that, in any proceedings brought under Article 22, a
court may grant appropriate relief, including a declaration of rights,
injunction, conservatory order, or order of judicial review, Article 23 [3]
gives meaning to Article 22 which grants persons, (including persons acting in
the public interest), the right to seek redress in the event of a denial, infringement,
violation or threat to rights and freedoms.
21) THAT The Constitution considers conservatory orders as one of the appropriate
reliefs that a court may grant for claims made under Article 22.
Page 7 of 10
14
22) THAT Both the Application and the Petition are about the implementation of
the Constitution of Kenya, 2010, and relate to the defense of the Constitution,
including upholding of the national values and principles of governance under
Article 10.
23) THAT It is important to maintain constitutionalism, rule of law, Law and

Order, good governance and protecting of the constitution.We are a country
governed by laws of the country. Respondents are not an exception.
24) THAT in the circumstances, this radical , irrational, illegal decision

which has been made by the respondents to defenseless Kenyans/ wastage
of funds ought to be temporarily suspended and then declared illegal null
and void/quashed.
25) THAT there is no other suit pending between the parties herein, nor has there
been any proceeding in any court between the parties herein over the same
subject matter herein and this honourable Court, being the custodian to the
Constitution and the law, is enjoined to remove any violations or threats to the
Constitution.
26) The balance of convenience favours the grant of the conservatory orders sought
herein.The Applicants/Petitioners herein have established a prima facie case with
high chances of success.
27) This Honourable Court has unfettered powers and jurisdiction to make the
orders sought.
28) This Application and Petition meets the purposes of justice and equity and the
overarching purpose of constitutional integrity and rule of law, to make the orders
sought.
Page 8 of 10
29) 15
THAT this matter is of Public interest.This court has jurisdiction over this
matter and I pray that it will be fair , just and expedient that this Motion be
allowed.
AND WHICH MOTION is grounded on the annexed affidavit of DR.MAGARE

GIKENYI J. BENJAMIN attached statements, upon such other grounds as may be
adduced at the hearing hereof.
DATED at NAKURU this 7TH day of JULY 2024 (saba saba liberation day)
1ST PETITIONER

2ND PETITIONER
DRAWN & FILED BY:

P.O Box 1805-20100
NAKURU

Page 9 of 10
TO BE SERVED UPON:
16
Harambee House
P.O. Box 40112-00100
NAIROBI

11) Nancy Onyango
14) Faith Odhiambo
16) Vincent Kimosop
20) Dr.Abraham Rugo
Page 10 of 10
REPUBLIC OF KENYA 17

50(1), 73, 74, 75, 93, 94, 95, 96, 129, 130, 131, 132,
135, 152(1), 156, 159, 162(1), 165(1), (3)(A, B AND (D)(I –
III)), 201, 211, 212, 213, 214, 225, 226, 229, 232(1 AND
2), 248, 249(1 AND 2), 252, 253, 254, 258(1 AND 2(C)),
259(1) AND 260.
73, 74, 75[1], 93, 94, 95, 96(1), 129, 131, 132, 156, 159,
201, 226(3), 229, 232, 248, 249, 254(2 AND 3), 259 AND
DATED 05.07.2024.

RULES 2013)
BETWEEN
=VERSUS=
Page 1 of 24
18
AND
PETITION
THE HONOURABLE JUDGE
THE HIGH COURT OF
KENYA AT NAIROBI.
THE HUMBLE PETITION OF PETITIONERS DR. MAGARE GIKENYI

BENJAMIN AND ELIUD KARANJA MATINDI-HEREINAFTER
REFERRED TO AS “THE PETITIONERS”-IS AS FOLLOWS:
A. DESCRIPTION OF PARTIES.
(I)THE PETITIONERS.
1) THAT the 1St petitioner, Dr.Magare Gikenyi J. Benjamin (MBChB(UoN),

Mmed(Mu),FCS(ECSA)Gen.Surg,Cert,HLM(Washington University) is a Consultant
Trauma and General Surgeon and is a resident of Kisii and Nakuru.He Kenyan
Medic by profession, human rights activist, a parent and patriotic citizen of Kenya
who looks into a future of Kenya where society strictly follows rule of law for
Page 2 of 24
19
betterment of society. He is a law-abiding citizen, a public-spirited individual, and
a human rights defender. His objectives is to promote democratic governance,
non-discrimination, stop ethnic marginalization, uphold the rule of
law/constitutionalism, defending human rights, and agitating for sustainable
economic development for the prosperity and well-being of the general population
in this lovely Country of ours. His address for service for purposes of this suit
shall be in the C/O DR.MAGARE GIKENYI J BENJAMIN Ouru Plaza, 3rd floor
KISII, Dr.Magare-Gikenyi Surgery Clinic. Email:magaregikenyi@yahoo.com,
Tel:254721707151.P.O Box 1866-40200 KISII.
2) THAT The 2ND ELIUD KARANJA MATINDI is a Kenyan citizens.They are public
spirited individuals and defenders of the Constitution of Kenya. He brings this
Petition in his own name in the public interest and in defence of the
Constitution.The 2nd Petitioner’s addresses of service for the purpose of this
Petition is; Email address bavance13@gmail.com.
(II) RESPONDENTS
3) THAT The 1ST RESPONDENT, HON. ATTORNEY-GENERAL, is a constitutional
office established by Article 156 of the Constitution.
(a) The 1st Respondent is joined in these proceedings as the principal legal adviser
to the Government. He is charged with representing the national government in
court proceedings such as these, to which the national government is a party.
(b) Further, the 1st Respondent is joined in these proceedings to answer for the
H.E., the President of the Republic, whom the Petitioners believe has violated
the Constitution in establishing the PRESIDENTIAL TASKFORCE ON
FORENSIC AUDIT OF PUBLIC DEBT, its membership, Terms of Reference and
tenure, as notified in the EXECUTIVE ORDER NO. 4 OF 2024, published at
Nairobi on 05.07.2024 as Gazette Notice No. 8261 of 2024. In their
interpretation and appreciation of the Constitution and the law, the Petitioners
believe H.E., the President, acted without any constitutional authority when he
issued the impugned Executive Order.
Page 3 of 24
(c) In addition, the 1st Respondent is constitutionally charged with the duty to 20
protect, promote and uphold the rule of law and defend the public interest. The
Petitioners believe EXECUTIVE ORDER NO. 4 OF 2024, published as Gazette
Notice No. 8261 of 2024, violates the Constitution. It is, hence, incumbent on
the 1st Respondent to stand up in defence of the Constitution against those
violations.
(d) The 1st Respondent’s address of service for the purpose of this Petition is, in
the first instance, by physical service at THE ATTORNEY-GENERAL, SHERIA
HOUSE, 7TH FLOOR, HARAMBEE AVENUE, NAIROBI and by E-mail
addresses communications@ag.go.ke, info@ag.go.ke and slo@ag.go.ke.
4) THAT The 2nd respondent, presidential taskforce on forensic audit of public

debt is a illegal, irregular and unconstitutional established presidential taskforce
on forensic audit of public debt through executive order no. 4 through gazette
notice no. 8261 Vol. CXXVI—No. 97 ON 5TH JULY 2024.The 2nd Respondent’s
address of service for the purpose of this Petition is, in the first instance, via the
attorney-general, sheria house, 7th floor, harambee avenue, NAIROBI and by E-
mail addresses communications@ag.go.ke, info@ag.go.ke and slo@ag.go.ke.
5) The 3RD CABINET SECRETARY FOR NATIONAL TREASURY AND ECONOMIC

PLANNING, is the Cabinet Secretary responsible for matters relating to finance,
including public debt.
(a) The 3rd Respondent has been joined in this Petition as, under the
Constitution, including Articles 201, 211, 212, 213 and 214, he has
constitutional responsibilities as regards public debt.
(b) The 3RD Respondent has further been sued in these proceedings as, under the
Terms of Reference of the impugned Executive Order No. 4 of 2024, the
Secretariat of the Taskforce shall be based National Treasury and Economic
Planning.
(c) The 3rd respondent’s address of service for the purpose of this petition is by e-
mail addresses cs@treasury.go.ke AND ps@treasury.go.ke
Page 4 of 24
6) The 4th RESPONDENT, AUDITOR-GENERAL, is an independent constitutional 21
office established by Article 229(1) of the Constitution, as read together with
Articles 248 and 253.
(a) Its powers and functions, which must be carried out in accordance with the
Constitution and the law, including auditing and reporting on the public
debt.Under Article 254(2) of the Constitution, as read together with Article
229(4)(g) of the Constitution and Section 37 of the Public Audit Act [CAP.
412B, LAWS OF KENYA], the 3rd Respondent may, at any time and upon the
request of the President, the National Assembly or the Senate, carry out a
forensic audit on the public debt.
(b) Article 254(3) of the Constitution, as read together with Article 229(7) and (8)
and Section 39, Public Audit Act, provide how audit reports carried out by
the 3rd Respondent, including forensic audit reports of public debt, shall be
dealt with upon their completion.The 4th Respondent has been joined in these
proceedings as it has been deprived of its constitutional powers and functions
to undertake a forensic audit of the public debt as provided by the Constitution
and the law.
(c) The 4th Respondent has further been sued in these proceedings as, under
Article 249(1) and (2) of the Constitution, it has a duty to protect the
sovereignty of the people, secure observance by all State organs (including the
President of the Republic) of democratic values and principles and promote
constitutionalism.
(d) the 4th respondent’s address of service for the purpose of this petition is
by e-mail address info@oagkenya.go.ke
7) The 5TH-15Th respondents are persons appointed to the PRESIDENTIAL

TASKFORCE ON FORENSIC AUDIT OF PUBLIC DEBT, as notified in the
Executive Order No. 4 Of 2024, published at Nairobi on 05.07.2024 as Gazette
Notice No. 8261 of 2024.The 5th respondent being a chairperson, 6Th
respondent vice-chairperson, while 7th-13Th respondents being members.The
14Th-15Th respondents are joint secretaries to the impugned taskfoce.These
Page 5 of 24
respondents in these proceedings as they have an identifiable interest/cause of 22
action as they are the one who will be undertaking the unconstitutional exercise
contrary to article 3 which states “every person” should uphold, respect and
protect the constitution that will be affected by the outcome of this matter. the
address of service for the purpose of this petition is through the 1st ,2nd, & 3rd
respondents.
8) THAT The 8th and 9th respondent Faith Odhiambo-chair LSK and LAW SOCIETY
OF KENYA are Under Section 4 of the Law Society of Kenya (LSK) Act, the LSK is
mandated to protect and assist the public and advise the government in all
matters touching, ancillary, or incidental to the law as well as to uphold the
Constitution of Kenya and advance the rule of law and the administration of
justice.The address of service for the purpose of this Petition is, in the first
instance, by physical service to LAW SOCIETY OF KENYA, LAVINGTON,
OPPOSITE VALLEY ARCADE, GITANGA ROAD, NAIROBI, and by Email address
- lsk@lsk.or.ke
(III) THE INTERESTED PARTIES
9) THAT The 1ST INTERESTED PARTY,CONTROLLER OF BUDGET a body

established by Article 228 of the Constitution for controlling Budgets. He/she
would be interested how the said taskforce use will use public resources/how it
will be financed. 1st interested party’s address of service for the purpose of this
Petition is, in the first instance, is Email: info@cob.go.ke
10) THAT The 2ND INTERESTED PARTY, KATIBA INSTITUTE, are entities
concerned with rule of law and constitutionalism. The 2nd Interested Party’s
address of service for the purpose of this Petition is, in the first instance, by
physical service to KATIBA INSTITUTE, HOUSE NO. 5 - THE CRESCENT, OFF
PARKLANDS ROAD, NAIROBI, and by Email address - info@katibainstitute.org.
11) THAT The 3rd-4Thinterested party KITUO CHA SHERIA and ,OPERATION
LINDA JAMII are entities concerned with rule of law and constitutionality
The Interested Parties’ address of service for the purpose of this Petition is, in the
first instance is info@kituochasheria.or.ke and fredotbs@gmail.com respectively
Page 6 of 24
B. PETITIONERS’ STANDING TO BRING THESE PROCEEDINGS AND THE 23
HONOURABLE COURT’S JURISDICTION TO HEAR AND RESOLVE THE
DISPUTE.
12) As stated in the PREAMBLE of the Constitution of Kenya, the Petitioners, in

common with other Kenyans, aspire for a government based on the essential
values of human rights, equality, freedom, democracy, social justice and the rule
of law.
13) Under Article 3[1] of the Constitution, the Petitioners, the Respondents, the
Interested Parties and this Honourable Court, all have an obligation to respect,
uphold and defend the Constitution.
14) Under Article 22 of the Constitution, the Petitioners have the right to institute
court proceedings, including in the public interest, claiming that a right or
fundamental freedom in the Bill of Rights, has been denied, violated or infringed
or is threatened with violation or infringement.
15) Under Article 23 of the Constitution of Kenya, this Honourable Court has
jurisdiction, in accordance with Article 165, to hear and determine applications
for redress of a denial, violation, or infringement of, or threat to, a right or
fundamental freedom in the Bill of Rights.
16) Under Articles 1[3][c], 159 [1] and [2], 162[1] and 165[1] of the Constitution,
the people of Kenya have donated and delegated their sovereign judicial authority
and applicable principles to the courts and tribunals established by or under the
Constitution. This Honourable court is one of those courts and tribunals so
established. The people’s delegated sovereign power shall be exercised only in
accordance with the Constitution.
17) Under Article 165[3][a, b and d] of the Constitution of Kenya, this Honourable
Court has unlimited original jurisdiction to hear, among others, any question
respecting the interpretation of the Constitution, including the determination of
the question whether a right or fundamental freedom in the Bill of Rights has been
Page 7 of 24
denied, violated, infringed or threatened, whether any law is inconsistent with or24
in contravention of the Constitution, whether anything said to be done under the
authority of the Constitution or any law is inconsistent with, or in contravention of
the Constitution and on any matter relating to constitutional powers of State
organs in respect of county governments and any matters relating to the
constitutional relationship between the levels of government.
18) Article 258 of the Constitution of Kenya further grants the Petitioners the right
to institute court proceedings, including in the public interest, claiming that the
Constitution has been contravened or is threatened with contravention.
C. THE LEGAL FOUNDATIONS OF THE PETITION INCLUDE:
19) Article 1 of the Constitution of Kenya which provides that all sovereign power
belongs to the people of Kenya and shall be exercised only in accordance with the
Constitution. This sovereign power is delegated to various state organs, including
the national executive and this Honourable Court. Recipients of this delegated
sovereign power are required to perform their functions in accordance with the
Constitution.
20) Article 2 of the Constitution which declares the supremacy of the Constitution
and provides that it binds all persons and all state organs at both levels of
government. No person may claim or exercise State authority except as authorised
under the Constitution. Any law, act or omission in contravention of the
Constitution is invalid and void, to the extent of the inconsistency.
21) Article 3 [1] of the Constitution which states that every person has an
obligation to respect, uphold and defend the Constitution. This includes the
Petitioners herein, the Respondents, the Interested Parties and this Honourable
Court.
22) Article 10 [1] of the Constitution which states that the national values and
principles of governance in Article 10 [2] bind all State organs, State officers,
public officers and all persons whenever any of them applies or interpret the
Page 8 of 24
Constitution, enacts, applies or interprets any law or makes or implements public 25
policy decisions.
23) Article 10 [2] of the Constitution which sets out the national values and
principles of governance which include the rule of law, democracy and
participation of the people, human dignity, equity, social justice, inclusiveness,
equality, human rights, non-discrimination, good governance, integrity,
transparency, accountability and sustainable development.
24) Article 19 of the Constitution which provides that the Bill of Rights is an
integral part of Kenya’s democratic state and is the framework for social, economic
and cultural policies. The Article identifies the purpose of recognising and
protecting human rights and fundamental freedoms, including to preserve the
dignity of individuals and communities, to promote social justice and enable
realisation of the potential of all human beings. The provision further states that
the rights and fundamental freedoms in the Bill of Rights belong to each
individual and are not granted by the state and may not be limited otherwise than
as contemplated by the Constitution.
25) Article 20 of the Constitution which states that the Bill of Rights applies to all
law, binds all State organs and all persons and that every person shall enjoy the
rights and fundamental freedoms in the Bill of Rights to the greatest extent
consistent with the nature of the right or fundamental freedom. The Article further
places obligations on courts and tribunals when interpreting and applying the Bill
of Rights. This includes powers for courts and tribunals to develop law to close
any gaps in realising a right or fundamental freedom as well as a duty to adopt the
interpretation of the Constitution and the law that most favours enforcement of a
right or fundamental freedom. The Article makes further provisions with regards
to realisation of rights enshrined in Article 43.
26) Article 21 of the Constitution, which states that it is a fundamental duty of the
state and every state organ to observe, respect, protect, promote, and fulfil the
rights and fundamental freedoms in the Bill of Rights. The Article further places a
positive duty to bring about realisation and enjoyment of the rights in the Bill of
Page 9 of 24
Rights, including protection against unlawful discrimination and protection of 26
human dignity.
27) Article 22, as read with Article 258 of the Constitution, which state that every
person has the right to institute court proceedings on his behalf or on behalf of
others, including in the public interest, claiming that a right or fundamental
freedom in the Bill of Rights has been denied, violated, or infringed, or is
threatened.
28) Article 23 of the Constitution which vests this Honourable Court with the
jurisdiction, in accordance with Article 165, to hear and determine applications
for redress of a denial, violation, infringement of, or threat to a right or
fundamental freedom. It also provides the reliefs that the court may grant in its
endeavor to enforce the Bill of Rights.
29) Article 25 of the Constitution, which provides for rights and fundamental
freedoms in the Bill of Rights, that shall not be limited. This includes the right to a
fair trial.
30) Article 47 of the Constitution, which provides for the right to fair
administrative action.
31) Article 48 of the Constitution, which requires the State to ensure access to
justice to all persons.
32) Article 50(1) of the Constitution, which provides for the right for every person
to have any dispute that can be resolved by the application of law decided in a fair
and public hearing before an independent and impartial forum.
33) Article 73 of the Constitution, which provides for responsibilities of leadership,

including by setting out guiding principles of leadership and integrity and the
purpose and exercise of authority assigned to a State officer and how that
authority shall be exercised.
Page 10 of 24
34) Article 74 of the Constitution, which requires persons, by oath or affirmation, 27
to commit to uphold and protect the Constitution, including before they assume a
State office.
35) Article 75 of the Constitution, which prescribes the expected conduct of State
officers, in their public and official life, in their private life, or in association with
other persons.
36) Article 129 of the Constitution, which sets out the principles of executive
authority, including that the authority is derived from the people of Kenya and
shall be exercised in accordance with the Constitution. The Article further
provides that the executive authority shall be exercised in a manner compatible
with the principle of service to the people of Kenya, for their well-being and
benefit.
37) Article 130 of the Constitution, which establishes the national executive of the
Republic, comprising of the President, the Deputy President and the rest of the
Cabinet.
38) Article 131 of the Constitution, which sets out the authority of the President.
This authority includes exercising the executive authority of and on behalf of the
people of Kenya, with the assistance of the Deputy President and Cabinet
Secretaries. The President, in exercise of this executive authority, is enjoined to
act in accordance with the Constitution.
39) Article 132 of the Constitution, which sets out the functions of President.
These include a requirement to obtain approval of the National Assembly before
appointing specified State or public officers, including the Auditor-General under
Article 229(1).
40) Article 135 of the Constitution, which requires decisions of the President in
the performance of any of the functions under the Constitution shall be in writing
and shall bear the seal and signature of the President.
Page 11 of 24
41) Article 152(1) of the Constitution, which constitutes the Cabinet of the 28
Republic.
42) Article 156 of the Constitution, which establishes the office of the Attorney-
General. The Article further sets out the functions, duties and powers of the
Attorney-General, including the duty to promote, protect and uphold the rule of
law and defend the public interest.
43) Article 159 of the Constitution, which decrees that the people’s judicial
authority vests in and is delegated to the courts and tribunals as established by or
under the Constitution. This delegated authority must be exercised in accordance
with the Constitution.
44) Article 162(1) of the Constitution, which establishes the systems of courts in
the country, including this Honourable Court as one of the superior courts of the
Republic.
45) Article 165(3)(a, b and d) of the Constitution, which vests this Court with
jurisdiction to hear and determine this petition.
46) Article 201 of the Constitution, which establishes the principles of public
finance, including openness and accountability, equitable sharing of burdens and
benefits of the use of resources and public borrowing between present and future
generations, prudent and responsible use of public money, responsible financial
management and clear fiscal reporting.
47) Article 211 of the Constitution which provides for borrowing by the national
government.
48) Article 212 of the Constitution which provides for borrowing by county
governments.
49) Article 213 of the Constitution which provides for loan guarantees by the
national government.
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29
50) Article 214 of the Constitution which makes provisions regarding the public
debt.
51) Article 225 of the Constitution which provides for, among others, financial
control, including expenditure control and transparency in all governments, and
establishment of mechanisms to ensure implementation of those financial
controls.
52) Article 226 of the Constitution which provides for accounts and audit of all
governments and other public entities. The provision further provides that the
accounts of all governments and State organs shall be audited by the Auditor-
General. The Article further provides for personal liability for any loss of public
funds occasioned by holders of public office, including political office, directing or
approving the use of public funds contrary to the law or instructions.
53) Article 229 of the Constitution, which establishes the office of the Auditor-
General, and its functions. These functions include auditing and reporting on the
public debt. The Article further makes provisions how audit reports (which shall
confirm whether or not public money has been applied lawfully and in an effective
way), shall be acted upon.
54) Article 232[1] and [2] of the Constitution, which sets out the values and
principles of public service. These values, which apply to public service in all State
organs in both levels of government and all State corporations, include high
standards of professional ethics, efficient, effective and economic use of resources,
accountability for administrative actions and transparency and provision to the
public of timely, accurate information.
55) Article 248 of the Constitution which, among others, lists the Auditor-General
as one of the independent constitutional offices.
56) Article 249 of the Constitution, which defines the objects of constitutional
commissions and independent offices, including the Auditor-General. These
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30
include to protect the sovereignty of the people, secure observance by all State
organs of democratic values and principles and promote constitutionalism.
57) Article 252 of the Constitution which, among others, empowers constitutional
commissions and independent offices to conduct investigations on own initiatives
or on complaint made a member of the public.
58) Article 253 of the Constitution, which incorporates the constitutional

commissions and independent offices as juristic persons, capable of suing and
being sued in their corporate.
59) Article 254 of the Constitution, which empowers the President, the National
Assembly or the Senate to require a commission or holder of an independent office
to submit a report on a particular issue. The provision further mandates that
every report required from a commission or independent office under the Article
shall be published and publicized.
60) Article 258 of the Constitution, which enshrines the right of the Petitioners
herein to bring these proceedings, including in the public interest.
61) Article 259 of the Constitution which, among others, provides that the
Constitution shall be interpreted in a manner that.
a. promotes its purposes, values, and principles.
b. advances the rule of law, and the human rights and fundamental freedoms
in the Bill of Rights.
c. permits the development of the law; and
d. contributes to good governance.
62) Article 260 of the Constitution which provides for the interpretation of the
Constitution.
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31
D.FACTUAL BASIS OF THE PETITION.
63) On 05.07.2024, H.E., the President of the Republic, caused to be published

EXECUTIVE ORDER NO. 4 OF 2024, as Kenya Gazette Notice No. 8261 of
2024. The Notice was published in a Special Issue of the Kenya Gazette of the
same date.
64) Said to be in exercise of the powers conferred by the Constitution and the
Statute Laws of the Republic of Kenya, H.E. the President established the
PRESIDENTIAL TASKFORCE ON FORENSIC AUDIT OF PUBLIC DEBT.
65) The 5TH-15 Respondents in these proceedings were constituted as members of

the Taskforce.
66) The Taskforce’s citation and Terms of Reference are as set on its face. While its
duration is for three (3) months from 05.07.2024, this period may be extended
by a Notice in the Gazette.
67) The Petitioners impugn the constitutional validity of the EXECUTIVE ORDER
NO. 4 OF 2024 in its entirety. It is their belief and conviction that H.E., the
President of the Republic, violated numerous provisions of the Constitution and
the law in establishing the PRESIDENTIAL TASKFORCE ON FORENSIC AUDIT
OF PUBLIC DEBT, constituting its membership, Terms of Reference, duration and
secretariat.
68) Owing to these violations, the Petitioners believe the EXECUTIVE ORDER NO.
4 OF 2024, published as Kenya Gazette Notice No. 8261 of 2024 on
05.07.2024, establishing the PRESIDENTIAL TASKFORCE ON FORENSIC
AUDIT OF PUBLIC DEBT, is unconstitutional, null and void.
69) The Petitioners therefore crave for a declaration that, in accordance with
Article 2(4) of the Constitution, H.E., the President, acted in contravention of the
Constitution when he issued EXECUTIVE ORDER NO. 4 OF 2024, dated
Page 15 of 24
05.07.2024 and published as Kenya Gazette Notice No. 8261 of 2024 of the 32
same date, establishing a PRESIDENTIAL TASKFORCE ON FORENSIC AUDIT
OF PUBLIC DEBT.
E. MANIFESTATION OF VIOLATIONS OR INFRINGEMENT OF OR THREATS TO

THE CONSTITUTION, [INCLUDING THE BILL OF RIGHTS], STATUTES,
REGULATIONS AND OTHER APPLICABLE LAWS AND RULES.
70) The Petitioners submit that the impugned Executive Order violates the
Constitution, thereby making it unconstitutional, null and void, in the following
ways:
(a) In establishing the Taskforce as notified, the President violated the

sovereignty of the people of Kenya under Article 1 of the Constitution.
(b) The people of Kenya delegated their sovereign power to carry out forensic
audit of the public debt under Article 229(4)(g) to the Auditor-General,
not the persons named by the President in the impugned Executive
Order. There is currently, in office, an Auditor-General, empowered and
competent to carry out an audit of the public debt of the Republic. This
includes either on own motion or on receipt of a complaint in exercise of
powers donated under Article 252(1)(a) and (2) of the Constitution.
(c) Under Article 254(2) of the Constitution, as read together with Section
37 of the Public Audit Act [CAP. 412B, LAWS OF KENYA], the people of
Kenya empowered the President, at any time, to require the Auditor-
General to submit a forensic report on public debt in Kenya covering any
period of time that the President may determine.
(d) Appointing a Taskforce to carry out a forensic audit of the public debt
outside the provisions of Articles 229(4)(g), 254(2) and Section 37 of
Page 16 of 24
the Public Audit Act is an affront to the Constitution and a violation of 33
those provisions.
(e) Further, requiring persons other than the Auditor-General to undertake

such an audit is a violation of Articles 226(3), 229(1), (2) and (4)(g) of
the Constitution. The eleven (11) persons hand-picked by the President
to be members of the Taskforce, (the 5th-15threspondents), have not
demonstrated, through fair competition and merit as required by Article
232(1)(g), that they meet the qualifications for appointment as Auditor-
Generals under Article 229(2). Neither have those eleven (11) persons
been approved for appointment as auditor-generals under Articles
132(2)(f) and 229(1) of the Constitution. Those appointments are
therefore in violation of the Constitution.
(f) It goes without saying that the Constitution only provides for one person
to hold the office of the Auditor-General at any one time. The
appointment, by the President, of eleven (11) persons, to act as the
forensic auditors of the public debt is without any constitutional
authority and a violation of Article 2(2) of the Constitution.
(g) The President of the Republic does not have constitutional authority to
recruit staff for the office of the Auditor-General, let alone hand-pick
persons to serve in or act as staff of the Auditor-General. The
appointment of the eleven persons to carry out a function exclusively
reserved to the office of the Auditor-General and its staff, is a violation of
Article 252(1)(c) of the Constitution.
(h) The President’s actions, as set out in the impugned Executive Order,
further violated Article 249(2) of the Constitution. Rather than follow
the lawful process set out in Article 254(2) of the Constitution, as read
together with Section 37 of the Public Audit Act, the President arrogated
to himself powers outside the Constitution. As well as violating Article
Page 17 of 24
2(2) of the Constitution, the President’s action were further an affront to 34
the national values and principles of governance under Article 10(2).
They were not based on any law, thereby violating the requirement to
uphold the rule of law. The selection of persons to serve on the Taskforce
was not subjected to any known recruitment process, thereby violating
the requirement for good governance, integrity, transparency and
accountability.
(i) The manner in which the President acted in establishing the impugned
Taskforce, including its composition and terms of reference, violated the
responsibilities of leadership under Article 73 of the Constitution. The
President’s actions were outside the authority assigned to a State officer.
They were inconsistent with the purposes and objects of the
Constitution, failed to demonstrate respect for the people of Kenya and
failed to bring honour to the nation and dignity to the office of the
President. The actions further failed to promote public confidence in the
integrity of the office and were a naked demonstration of abuse of the
Constitution, ruling rather than serving the people of Kenya.
(j) Having been appointed at the whim of the President, it cannot be

demonstrated that the persons constituted to serve on the Taskforce
possess the personal integrity, competence and suitability to serve as ad-
hoc Auditors-General. This violates Article 73(2)(a) of the Constitution.
The President cannot further demonstrate that his decision to appoint
the persons to constitute the Taskforce was not influenced by nepotism,
favouritism, other improper or corrupt practices, contrary to Article
73(2)(b) of the Constitution.
(k) It is notable that the impugned Executive Order makes no provisions for
any remuneration or benefits of the persons appointed out of public
funds. This omission provides reasonable grounds to believe the persons
serving on the Taskforce are there to fulfil the private interests of
Page 18 of 24
unknown persons and not serve the people of Kenya in accordance with 35
the Constitution and the law. This lack of transparency as to how
members of the Taskforce will be remunerated is an affront to the
requirements of transparency and accountability, including under
Articles 10(2) and 201 of the Constitution.
(l) Despite the claimed need for the Taskforce as set out in the Executive
Order’s citation, i.e. to establish whether public debt, acquired in the
name of the people of Kenya, was acquired in accordance with the
Constitution and the law and was subsequently applied in accordance
with Constitution and the law, not least lawfully and effectively as
required by Article 229(6), there was no public participation, either in
setting the terms of reference of the Taskforce or appointment of its
members, despite this being a required principle under Articles 10(2)(a)
and 201(a) of the Constitution. This, it is the Petitioners’ case, was a
violation of those constitutional provisions.
(m) 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), the Taskforce
established by the impugned Executive Order reports to and is
accountable to the President in the performance of its mandate. The
President, a creature of the Constitution, has unconstitutionally elevated
himself above and outside the limits set by the Constitution. It is not
known what fate will befall any reports submitted to the President once
the Taskforce completes it task, whenever that may be.
(n) Unlike audit reports, including forensic audit reports carried out by the
Auditor-General under Articles 254(2) of the Constitution which must
be published and publicised, no person, other than the President, knows
what will happen to any reports that result from the work of the
Taskforce established under the impugned Executive Order. The
Petitioners vehemently contest the constitutional validity of such a state
of affairs.
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36
(o) Rather than respect, uphold, safeguard and defend the Constitution, the
sovereignty of the people of Kenya and the rule of law as required by
Articles 3(1), 10(2) and 131(2)(a and e), the President, in establishing
the Taskforce, choosing its composition and setting its terms of
reference, chosen to wander out to constitutional wilderness. This, the
Petitioners believe, turn the President into a constitutional outlaw.
(p) It is the Petitioners’ endeavor, through these proceedings, to subject H.E.

the President, to the disciplining effect of the Constitution and steer him
back to the constitutional paddock.
F. A. ONGOING CASES RELATED TO THE MATTERS IN DISPUTE THIS

PETITION.
71) The Petitioners hereby confirm that they are not aware of any case pending in
any other court, involving the parties herein, over the same subject matters raised
hereof.
G. RELIEFS/PRAYERS SOUGHT
72) YOUR PETITIONERS HUMBLY PRAY THAT THIS HONOURABLE COURT BE

PLEASED TO RESOLVE, BY THE APPLICATION OF LAW, THE FOLLOWING
ISSUES WHICH THEY BELIEVE TO BE IN DISPUTE IN THESE PROCEEDINGS,
THESE BEING WHETHER:
a) H.E. THE PRESIDENT OF THE REPUBLIC OF KENYA, could

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;
b) EXECUTIVE ORDER NO. 4 OF 2024, published as Kenya Gazette No.

8261 of 2024 and dated 05.07.2024, is constitutional
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37
73) REASONS WHEREFORE, your Petitioners humbly pray for A
DECLARATION THAT:
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.
b) 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.
c) A declaration hereby issues 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 5th 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 AND 3), 259 AND 260 OF THE CONSTITUTION OF
KENYA(2010),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
74) UPON MAKING DECLARATIONS AS ABOVE, this Honourable Court be

pleased to issue an ORDER:
(a) 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.
Page 21 of 24
(b) Judicial review orders of CERTIORARI QUASHING EXECUTIVE ORDER 38
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.
(c) Judicial review orders of CERTIORARI QUASHING Kenya Gazette No.

8261 of 2024 and dated 05.07.2024.
(d) That any report borne out of the above impugned gazette
notice/executive order is null and void.
(e) Judicial orders of mandamus compelling the respondents to comply

with relevant constitutional provisions and/or any other law.
(f) THAT this Honourable Court be pleased to issue a JUDICIAL REVIEW

ORDERS OF PROHIBITION, prohibiting the Respondents, either by
themselves, anyone else acting at their behest, instructions or
directions or any other person whosoever, from taking any action
whatsoever pursuant to or in reliance on or in fulfillment of any duty
or obligation or implementation of EXECUTIVE ORDER NO. 4 and/or
GAZETTE NOTICE NO. 8261 Vol. CXXVI—No. 97 of 5TH JULY 2024
published for the formation/establishment/appointment of
(g) Any other appropriate relief the court may deem just to grant
(h) This being a public interest Petition filed in defence of the

Constitution, ordering each party herein to meet their costs.
75) THAT The petitioner having submitted/put across the statutory and
constitutional violations of undertaken by the respondents against defenseless
Kenyans in and the constitution the petitioner rests his case, now waiting the
court to take up its role.
Page 22 of 24
DATED at NAKURU this 7TH day of JULY 2024 (saba saba liberation day) 39
1ST PETITIONER

2ND PETITIONER
DRAWN & FILED BY:


P.O Box 1805-20100
NAKURU

TO BE SERVED UPON:
Harambee House
P.O. Box 40112-00100
NAIROBI
Page 23 of 24
2) Presidential Taskforce on Forensic Audit Of Public Debt 40
11) Nancy Onyango
14) Faith Odhiambo
16) Vincent Kimosop
20) Dr.Abraham Rugo
Page 24 of 24
REPUBLIC OF KENYA 41
50(1), 73, 74, 75, 93, 94, 95, 96, 129, 130, 131, 132,
135, 152(1), 156, 159, 162(1), 165(1), (3)(A, B AND (D)(I –
III)), 201, 211, 212, 213, 214, 225, 226, 229, 232(1 AND
2), 248, 249(1 AND 2), 252, 253, 254, 258(1 AND 2(C)),
259(1) AND 260.
73, 74, 75[1], 93, 94, 95, 96(1), 129, 131, 132, 156, 159,
201, 226(3), 229, 232, 248, 249, 254(2 AND 3), 259 AND
DATED 05.07.2024.
RULES 2013)
BETWEEN
=VERSUS=
Page 1 of 5
42
AND
SUPPORTING AFFIDAVIT
(In support of application and petition)
I, DR.MAGARE GIKENYI J BENJAMIN(MBChB(UoN), Mmed(Mu),

FCS(ECSA)Gen.Surg,Cert,HLM(University of Washington) is a Consultant Trauma and
General Surgeon working for the county government of Nakuru and is a resident of
Nakuru of postal address 1805-20100 Nakuru, being sui juris and compos mentis do
hereby make a solemn oath and state as doth”-
1. THAT I am a Kenyan National and the 1St petitioner herein hence competent to
make and swear this affidavit.
2. THAT I am Kenyan Medic by profession, a parent and patriotic citizen of Kenya

who looks into a future of Kenya where society strictly follows rule of law for
betterment of society.
3. THAT I swear this affidavit in good faith, on my own behalf and, with their
authority, on behalf my co-petitioners in these proceedings, in support of our
Application and Petition.
Page 2 of 5
43
4. THAT I have perused the Application and Petition and confirm both to be true
and correct.
5. THAT I hereby reaffirm and solemnly repeat the facts and averments stated and
included in the Application and Petition, including each of the paragraphs
[individually as well as cumulatively] and solemnly state that the facts therein
are true to my own knowledge, information and belief.
6. THAT I am of the firm belief that, by their actions and omissions, the
Respondents in these proceedings, have grossly violated the Constitution of
Kenya, 2010.
7. THAT The Application and Petition are part of ongoing efforts to implement,
uphold and defend the Constitution of Kenya, 2010, and promote and entrench
constitutionalism as the cornerstone of any and every action contemplated or
undertaken by every person who is bound by the Constitution, including but not
limited to upholding the Bill of Rights and the rule of law.
8. THAT I believe there will be grave consequences to the Constitution of Kenya

and the rule of law if this Honourable Court does not grant the declarations and
orders sought in the Application and the Petition.
9. THAT In support of my averments herein, the Application and the Petition, I

annex hereto, as supporting evidence, a bundle of documents marked
“ANNEXURE EXHIBIT - , these being:
(a) Copy of a gazette Notice of Unconstitutional 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 5th July 2024.(See copy of gazette notice marked annexture
MG-1)
(b) Copy of Press statement of the 9th respondent signed by the 8th
respondent. (See copy of Press Release marked annexture MG-2)
Page 3 of 5
44
(c) Copy of judgment of the High Court in Kitale High Court Kevin Otieno
Ondago v Natembeya & 15 others; Auditor General & another (Interested
Parties) (Constitutional Petition E003 of 2023) [2023] KEHC 22268 (KLR)
(19 September 2023) (Judgment) Neutral citation: [2023] KEHC 22268
(KLR) – (see copy of Judgement marked annexture MG-3)
10. THAT this matter is of Public interest.This court has jurisdiction over this
matter and I pray that it will be fair , just and expedient that this petition and
application be allowed.
11. THAT I request this honourable court to grant me prayers as prayers(both in

application and petition) and that having put across the statutory and
constitutional violations of undertaken by the respondents against defenseless
Kenyans”, I rest my case ; now waiting the court to take up its role. END
12. THAT What is deponed to herein is true to the best of my knowledge, save
what has been deponed to on information and belief, the sources and grounds
whereof have been respectively specified.
SWORN at NAKURU this 7TH day of JULY 2024 (Saba Saba liberation day)
Page 4 of 5
DRAWN & FILED BY:
45
P.O Box 1805-20100
NAKURU

TO BE SERVED UPON:
Harambee House
P.O. Box 40112-00100
NAIROBI

7) Faith Odhiambo
8)
13) Nancy Onyango
17) Vincent Kimosop
21) Dr.Abraham Rugo
Page 5 of 5
46
SPECIAL ISSUE
THE KENYA GAZE,TTE

Published by Authority of the Reputrlic of Kenya
(Registered as a Ne*'spaper at tlie G.P.O.)
Vol. CXXVI-No.97 NAIROBI,5th July,2024 Price Sh.60
GA7-ETTE NoTICE No, 826 ] \ ,'HEREAS, as a result of the increased debt stock. debr service has
become the single largest expenditure item today wilh
EXECI]TIVE ORDER NO,.+ OF 2024
interest payments alone exceeding the developntent
PRESIDENTIAL TASKFORCE ON FORENSIC AUDIT OF expenditure of the Nationai Government;
PUBLIC DEBT
WHEREAS. owing to the quantum of rhe debt stmk, the govemmenr
WHEREAS, the national values and principies of governance as well budget and the economy. the government has had to set
as principles of public finance as set out in the priorities in publc erpendirure programmes leading to
Constitution require adherence to equity, good conccms by members of the pubiic on financial and
govemance. transparenc) . inreeriry. openness and auxilirry govemrnue is.ue::
accountability, and public participation in the NO\\' Therelbre.I, William Samoei Ruto. PresidenL of the
management of public finances;
Republic of Kenya and Commander-in-Chief of thc Det-ence Forces, in
WHEREAS, public debt refers to all financial obligations attendant to exercise of dre powers confened on me bv the Constitution and the
loans raised or guaranteed and securities issued or Statute Laws of the Republic of Kenya. do hereby order and direct:
suaranteed by the national govemment and that the
I. THAT a Presidential Tasklbrce on Forensic Audit ol'Public
Constitutiorl requires responsible fi nancial management
Debt is hcrcby cstablished;
rnrl clerr [iseal rcponing:
WHEREAS- a sacred duty devolves upon a1l those charged rvith the
IL THAT, the Presidcntial Taskforce on Forensic Audit of Public
Debt shall be constituted as tbllows:
management of public affairs to ensure that ptrblic
resources. including public debr. are managed prudently Nancv Onvango Chairperson
ol public debt are
and that the burden and benefits -
-.hared equitably betweeit present and future Luis G. Franceschi (Prof.) Yice-Chairperson
-
generations:
Members.
WHEREAS, Article 211 of the Consrirurion antl secrions 49 and 5l
CPA Philip Kaikai Chairperson. ICPAK
of the Public Finmce l\{anagernent Act vest the Faith Odhiambo President. LSK
authority of borrowing 1br purposes of public Shammah Kiteme (Eng.) President, IEK
expenditure on the National Govemment and its
Vincent Kimosop
entities;
One Representative liom each of the following institutions:
WHEREAS. Section 50 of the Public Finance N{anagement Acr
requires the National Govemment to ensure that in (a) Institute of Certilied Public Accountants of Kenva
borrowing and guaranleeing the bonorving of money, (ICPAK);
its financing needs and payment obligations are met at
the lou'est possible cost in the market which is (b) Law Society ofKenya (LSK); and
consistent with a prudent degree of risk, while ensuring
(<,) Institute of Engineers of Kenya (IEK).
that the'overall level o{public debt is sustainable;
!<tint Sec'returies:
WHEREAS, Kenya's public debt has grown rapidly in recent years
to over Kenya Shilliags l0 trillion roday, a five-tbld Abraham Rugo (Dr.),
increase liom Kenya Shillings 2 trillion a decade agog Aaron Thegeya (Dr-).
and the debt burden rclative to the economy has
increased front 40 to 70 percent of the Gross Donresric IlI. The Terms of Rel'erence of rhe'fasktbrce shall be to-
Product (GDP), above a prudential limit of 60 percent
of GDP;
(a) Yeifl the current stock of public and publicly gutranteed
debt:
Ihis rs exhibn
lr<71
r-'-
day
2574
2574
2:43 PM THE KENYA GAZETTE 5th July, 2024 47
(b) Reconcile the proceeds of loans with the requisite regulators and Government agencies, and any other person
appropriation for which it was intended; or entity as the Taskforce shall deem necessary;
(c) Reconcile the loan servicing/repayments with the attendant (c) hold such number of meetings, consultative sessions, public
terms of the facility based on the relevant context and the events and engagements as the Taskforce shall consider
terms of the loans; necessary for the purposes of receiving information or
views in furtherance of its terms of reference;
(d) Assess whether the country obtained value for money with
regard to: (d) co-opt any person as it may consider necessary or
expedient for the proper performance of its functions and
(i) Terms of the loan; the effective discharge of its mandate;
(ii) Cost of the projects financed; (e) have such powers as may be necessary or expedient for the
(iii) The return on investment; proper execution of its functions;
(iv) Equity; including inter-generational equity. (f) regulate its own procedure;
(e) Assess the adequacy of the public finance management (g) create committees or sub-committees for the efficient and
(PFM) framework safeguards on debt management and expedited discharge of its mandate;
recommend changes in control environment to strengthen (h) may consider and use the reports of any past or ongoing
the governance of the nation’s public debt management initiatives as the Taskforce may deem relevant to its
system; mandate; and
(f) In the light of the current debt burden, the imperative for (i) request and receive any information or document that may
fiscal consolidation and the constrained fiscal space, be relevant to the discharge of its mandate.
recommend alternative sources of financing the country’s
development needs in the short and medium term and any V. The Taskforce will serve for a period of three (3) months with
debt reorganisation plan; and effect from the date hereof, or for such longer period as may be
specified by Notice in the Gazette.
(g) To consider, perform, or advise on any other matter or
subject ancillary to the above. VI. The Secretariat of the Taskforce shall be based at the National
Treasury and Economic Planning.
IV. In the performance of its mandate, the Taskforce shall—
Dated the 5th July, 2024.
(a) report to and be accountable to the President;
WILLIAM SAMOEI RUTO,
(b) consult with stakeholders in the public finance sector President.
including industry players, associations and lobby groups,
PRINTED AND PUBLISHED BY THE GOVERNMENT PRINTER, NAIROBI

48
Law Societv of Kenva LAW SOCIETY OF KEI\IYA
Iavington, opp Valley Arcade, Gitanga Road

P.O Box 72219-W2Co Nairobi, lGnya
Tel: +254lll O45 30O
Website: wwwislcor.ke
Email: lsk@kk.or,ke
PRESS STATEMENT
Qur Ref: S/24
Your Ref: TBA
Date: 5n )uly,2024
LAW SOCIETY OF KENYA POSITION ON THE PRESIDENTIAL TASKFORCE ON

FORENSIC AUDIT OF PUBLIC DEBT
The Law Society of Kenya has taken note of Gazette Notice No. 8261 of 2O24, forming a
Presidential Taskforce on Forensic Audit of Public Debt. The said taskforce is required to
audit the public debt within 90 days and report back to the President.
Under Section 4 of the Law Society of Kenya (LSK) Act, the LSK is mandated to protect and
assist the public and advise the government in all matters touching, ancillary, or incidental
to the law as well as to uphold the Constitution of Kenya and advance the rule of law and
the administration of justice.
Further, Article 229 of the Constitution of Kenya 2010 establishes the office of the Auditor-
6eneral, whose mandate includes among others, auditing public debt. Article 229@)
specifically requires the Auditor-6eneral to audit the public debt within six months after
the end of each financial year. Additionally, Article 226 provides that the accounts of all
governments and state organs must be audited by the Auditor-C'eneral:
"(4) Within six months after the end of each financial year, the Auditor-General
shall audit and report, in respect of that financial year, on-
(a) the accounts of the national and county governments:
(b) the accounts of all funds and authorities of the national and county
governments:
(c) the accounts of all courts;
(d) the accounts of every commission and independent office established by this
Constitution;
(e) the accounts of the National Assembly, the Senate and the county assemblies;
(f) the accounts of political parties funded from public funds:
(g) the public debt; and
(h) the accounts of any other entity that legislation requires the Auditor General to
audit. "
Faith Odhiambo (President), Mwaura Kabata (Vice-President)

Tom K'opere. Teresia Wavinya, Hosea Manwa, (6eneral Membership Representatives)
6loria Kimani, lrene Otto, Stephen Mbugua (Nairobi
Vincent Cithaiga, Lindah Kiome. Hezekiah Aseso. Zulfa Roble (Upcountry tmarreo*...M6i"***-"
Eiizabeth Wanjeri (Coast Representative)
Sworn I before me
dqy
nlIS Republit of Kenya
49
We also take note of the recent High Court decision underscoring the Auditor-General’s
role in public audit matters in Ondago v Natembeya & 15 others [2023] KEHC 22268 (19
September 2023) (Judgment) where the High Court while nullifying a Taskforce created
to audit County Government debts, asserted that the Governor could request the Auditor-
General to conduct a forensic audit.
Taking cognisance of the provisions of Article 229 of the constitution and the interpretation
of the said provisions by the court, it is our considered view that the establishment of the
taskforce is unconstitutional. The mandate to audit public debt rests with the office of the
Auditor-General.
The Council of the Law Society of Kenya has thus resolved that neither our president nor
any of our members shall take up appointments or participate in the said taskforce. The
LSK, under its statutory mandate, advises the President to refrain from usurping the
Constitutional powers of the Auditor-General through Executive Orders and allow the
Auditor-General to perform her constitutional duties.
Furthermore, the Office on Public Debt Management, headed by a Director-General at the

Treasury and funded by public money, should provide details of public debt to the Auditor-
General for forensic audit. It is essential not to squander scarce public resources by
appointing a Presidential Taskforce to perform duties of existing public offices.
Thank you.
Florence W. Muturi
Secretary/ CEO
Faith Odhiambo (President), Mwaura Kabata (Vice-President)

Tom K’opere, Teresia Wavinya, Hosea Manwa, (General Membership Representatives)
Gloria Kimani, Irene Otto, Stephen Mbugua (Nairobi Representatives)
Vincent Githaiga, Lindah Kiome, Hezekiah Aseso, Zulfa Roble (Upcountry Representatives)
Elizabeth Wanjeri (Coast Representative)
50
)
I
r$ lK ENYA il-AI&I
Where legal Information is Public Knouledge
Ondago v Natembeya & 15 others; Auditor General & anottrer (Interested Parties) (Constitutional
Petition Eooz of 2o231\20231KEHC 2226$ (r[R) (19 september zo23l (Judgment)
Neutral citation: [2023] KEHC 22268(KLk)
REPUBLIGO} KE-.NYA.
IN TI{E HIGH COURI AT KITALE

CONSTITUTIONAL PEfiTION EOO3 OF 2023
AC MRIMA,J
SEPTEMBER 19,2023
BETWEEN
KEVINE OTIENO ONDAGO PETIfiONER
AND
H.E. GEORGE NATEMBEYA, GOVERNOR COT,NTY GO\'ERNMENT OF
TRANS-NZOIA............ ... 1sr RESpONDENT
THE COUNTY GOVERNMENT OF TRANS-NZOIA 2ND RESPONDENT
THE C OUNTY EXEC UTI\'E COMMITTEE MEMBER FOR FINANCE,
COUNTY GOVERNMENT OF TRANS-NZOIA ...................... 3N' RESPONDENT
THE CHIEF OFFICER FINANCE, COUNTY GOI'ERNMENT OF TRANS.
NZOIA ......... 4'NI RESPONDENT
EDY/ARD OUKO 5T}I RESPONDENT
JAMIN I(V/ANUSU 6*,RESPoNDENT

AI,EX RUGERA 7I1{ RESPONDENT
CHRIS'WASIKE MLING'OMA 8,, RESPoNDENT

IMELDA MIDzuKAM ARUULA .... 9" RESPONDENT
KTRATO VANJALA VANYONYT .. 101u RESpONDENT
JARED RODRICK NYAUNDI ........ 11rrr RESPONDENT

PATRICK CHACHA ....I2TI1RESPONDENT
SILAS MUSAKALI ....... 13T" RTSPONDENT
TABITHA MUTHUI KIMONYO 14III RESPONDENT
CHRISTIAN GAITIERU MAHINDA l5jrlRESPONDENT
JAMES RWANDA NCEBERE 16TI{ RESpoNDENT
AND
rh is exhibir m ar re 4...."f*I-Q.r3..."....
in
ffi kenyalaw.orslcaseIaw,/cases/view/ 267 4\7 /

Republic of
51
THE AUDITOR GENERAL ................................................... INTERESTED PARTY
SALARIES & REMUNERATION COMMISSION ............... INTERESTED PARTY
JUDGMENT
Introduction:
1. The Petition subject of this judgment raises governance issues relating to the constitutionality of the
Taskforce on pending bills and human resource audit as undertaken by the Trans Nzoia County
Government.
2. The Petitioner describes himself as an enthusiast constitutional defender. He contended that he led
the Petition in the interest of the public to protect the constitutional mandate of the Auditor General
relating to formation of Taskforces within County Governments.
3. It is vehemently contended that the establishment of a Taskforce by the 1st Respondent to undertake
the audit of pending bills and human resource variously infringes the Constitution.
4. The Petition was opposed by all the Respondents. The Interested Parties, however, did not participate
in the hearing.
The Parties
5. The 1st Respondent is the Chief Executive of the County Government of Trans-Nzoia in accordance
with Article 179 (4) of the Constitution.
6. The 2nd Respondent is a devolved unit of the Government established under Article 176 as read with
the First Schedule of the Constitution.
7. The 3rd Respondent is a member of the County Executive Committee which is established by dint of
Articles 176(1) and 179(1), (2), (3) and (6) of the Constitution. In furtherance of Section 30(2)(d) of
the County Governments Act 2012, he is appointed by the Governor to be in charge of Finance in the
County Executive.
8. The 4th Respondent is an ocer in the County Public Service established under Section 45 of the
County Governments Act and is responsible to the County Executive Committee member for the
administration of a county department.
9. The 5th, 6th, 7th, 8th, 9th, 10th and 11th Respondents were appointees of the Taskforce on Trans-Nzoia
County Pending Bills and Human Resource Audit appointed on 21st October, 2022 by the 1st
Respondent vide Kenya Gazette (Vol. CXXIV-No.218) Notice No. 12643.
10. The 12th, 13th, 14th, 15th and 16th Respondents are the co-opted members of the Taskforce.
11. The 1st Interested Party is a constitutional independent oce established under Article 229 as read
together with Article 248 (3) (a) of the Constitution. It is tasked with the responsibility of audit and
report in respect to each nancial year on inter alia, the accounts, funds and authorities of County
Governments, within six (6) months after the end of each nancial year. Its report is submitted to the
relevant county assembly to conrm whether or not public money has been applied lawfully and in
an eective way.
kenyalaw.org/caselaw/cases/view/267457/ 2
52
12. The 2nd Interested Party is an independent oce established in line with Articles 230 and 248(2)(h)
of the Constitution. Its powers and functions are to set and regularly review the remuneration and
benets of all State ocers and advise the National and County Governments on the remuneration
and benets of all other public ocers.
The Petitioner’s case

13. The Petitioner cited Articles 1 (1) & (3), 2 (1), (2) & (4), 3 (1), 10 (2), 23 (3), 47, 73 (1), 159 (1), 201,
226 (5), 248 (3) (a), 229 (4), (6), (7) & (8), 249 (1), 258 (1) and 259 (1) of the Constitution as well as
Section 149 (2) of the Public Finance Management Act 2012 and Section 7 (1) (a) of the Public Audit
Act 2015 to lay a legal and constitutional matrix in support of the Petition dated 23rd March, 2023 and
led on 24th March, 2023.
14. According to the Petitioner, since those cited provisions were violated by the Respondents, he was
entitled to the following reliefs: -
1. A declaration that the decision of the 1st Respondent to appoint a Taskforce

to audit the accounts of the County Government of Trans-Nzoia, which is a
constitutional mandate of the Auditor General is illegal and unconstitutional
and violates the provisions of Article 229 of the Constitution;
2. A declaration that within the intendment of Article 229 of the Constitution as

read with Section 7 and 10 of the Public Audit Act 2015, it is only the oce
of the Auditor General mandated to perform audit of accounts of County
Governments;
3. A declaration that within the intendment of Article 226 of the Constitution as

read with Section 149 of the Public Finance Management Act 2012 that the
Accounting Ocers of a County entity shall ensure that every expenditure
shall be lawful and authorized;
4. A declaration that the 1st, 3rd and 4th Respondents violated Article 201(d) of the
Constitution when they approved irresponsible and imprudent use of public
funds to nance the audit of the County Government accounts, a function
that the tax payers have already paid the Auditor General to do;
5. A declaration that the 1st, 3rd and 4th Respondents violated Article 210(d) of the
Constitution when they approved irresponsible and imprudent use of public
funds for remuneration of members of the Taskforce – without mandate and
authority of the Salaries and Remuneration Commission;
6. A declaration that the Respondents have breached the provisions of Article 47

of the Constitution, by proceeding to make adverse recommendations against
persons mentioned in the Taskforce report, specically, one Patrick Simiyu
Khaemba, without according him opportunity to be heard;
7. A declaration that the Respondents have breached the provisions of Article 10

of the Constitution on public participation, by proceeding to make Taskforce
report without meaningful and qualitative consultation with members of the
public;
53
8. An order of Certiorari do issue to bring into the Honourable Court for
purposes of quashing the Report of the Taskforce on pending bills and human
resources audit dated 10/03/2023;
9. An order of permanent injunction do and is hereby issued restraining the

Respondents, their agents and ocers under their authority from conducting
any further nancial and human resource audit contrary to the Constitution;
10. An order be issued pursuant to the provisions of Article 226 (5) of the
Constitution for the Respondents to refund to the public coers the sum
of Kshs. 20,000,000.00 or such other sums that will be ascertained through
an audit by the Auditor General, which funds were used for to prepare the
Taskforce report;
11. An order be issued for the Auditor General to conduct a special audit within
a reasonable (sic) on the issues raised by the Taskforce specically on pending
bills;
12. The Respondents bear the cost of the Petition.
15. The Petitioner pleaded that vide the Kenya Gazette (Vol CXXIV-No.218) Notice No. 12643 published
on 21st October, 2022, the 1st Respondent appointed a Taskforce for purposes of verication of the
pending bills and human resource audit of the County Government of Trans-Nzoia.
16. The composition of the Taskforce’s leadership included its Chair being the retired Auditor General
(FCPA Edward Ouko, the 5th Respondent herein), deputized by his immediate Deputy. Concluding
their assigned task, the Taskforce submitted a Report dated 10th March, 2023 namely Report of the
Taskforce on Pending Bills and Human Resource Audit – Natembeya’s Road to Prosperity.
17. The Petitioner cited Article 229(4)(a) of the Constitution to fortify that the 1st Interested Party has
exclusive constitutional powers to audit all State organs including County Governments. Those
audit roles included but were not limited to nance, performance, accountability and special audits.
For this reason, the Petitioner contended that private individuals had no powers to audit the
County Government. In addition, it was only the 1st Interested Party vested with powers to delegate
constitutional and statutory audit powers but done so procedurally.
18. The Petitioner’s delineation of the Petition was that it was precedent setting since it challenged the
usurpation of constitutional and statutory powers of the Auditor General. This was due to the fact
that the Taskforce Report bore similarities with the antecedent reports of the Auditor General for the
County Executive of Trans-Nzoia. C
19. The Petitioner questioned whether the immediate Auditor General and his deputy, as Chair
and member respectively of the Taskforce, were authorized to sit and audit the 2nd Respondent
notwithstanding the audit exercise that they conducted between 2013 and 2020. Those reports were
annexed in a bundle and marked KOK3. This, he argued, violated Article 229 of the Constitution.
20. He lamented that the Taskforce lacked the requisite mechanisms to conduct the audit process that
would guarantee the right to fair administrative action. He explained that since audit processes uphold
the audi alteram partem rule and take considerations as to appropriate recommendations, the Taskforce
was haphazard and uncoordinated since it failed to follow such due processes. This is because it failed
to aord the members cited in the report an opportunity to address the Taskforce on any allegations
leveled against them. He was of the view that the cited members ought to have been involved in the
54
process from commencement up to release of the report. The absence of such due process was in
breach of Article 47 of the Constitution and Section 4 of the Fair Administrative Action Act 2015. He
was apprehensive that its implementation was in conict with the erstwhile audit reports of the 1st
Interested Party.
21. According to the Petitioner, the process ought to have implored the consultative approach by issuing
a letter of understanding to the aected members. Thereafter, share the audit ndings which process
would be followed by drafting a management letter to the Accounting Ocer. Following, the draft
audit report is issued to the institution under audit for queries or resolution of standing issues. Finally,
the nal audit report is then presented to the Senate or County Assembly for their further action.
22. The Petitioner opined that the Taskforce had usurped the powers of the 1st Interested Party. He
thus questioned whether the sum of Kshs. 20,000,000/= utilized by the Taskforce, was lawful,
constitutional, necessary and proper since the sum was paid out of public funds. He was dubious
as to whether the utilization of such funds was approved by the 1st Interested Parties thereby
unconstitutional and illegal.
23. In his view, the action of approving the said expenditure from public funds by the 1st, 3rd and
4th Respondents without the approval of the 2nd Interested Party amounted to an illegal and
unconstitutional process violated Article 2(2), 10 and 201 of the Constitution.
24. The Petitioner accused the Taskforce of failing to conduct public participation during the preparation
of the report. This action violated Article 10 of the Constitution. Furthermore, the Petitioner decried
that the notice period for the head count leading up to the recommendations about ghost workers was
too short.
25. According to the Petitioner’s observation, the report of the Taskforce was imported from the 1st
Interested Party’s reports for the years 2013 to 2021. This was in direct conict since its Chair audited
the 2nd Respondent from 2013 to 2019. In addition, those reports had been or were currently in the
process of implementation. For these reasons, the Petitioner stated that the report was in breach of
Article 249 (2), 229 (6) and (7) of the Constitution, Section 7 (1) (a) and 48 of the Public Audit Act,
2015 and the International Standards of Supreme Audit Institutions (ISSAI) 30 Code of Ethics.
26. He exposited that the process of implementation of the 1st Interested Party’s reports involves the
participation of the Senate and the County Assembly to hear the County Executive for queries. In
the process, contentious issues are agged for investigation purposes. He cited the example of the
acquisition of land for construction of Trans Nzoia Referral Hospital which issue was investigated by
EACC. For this reason, he was apprehensive that the recommendations of the Taskforce would stir
inconsistences and double jeopardy.
27. Further demonstrating bias from the absence of fair administrative action, the Petitioner cited the
following recommendations as adversely aecting the mentioned persons in the report: -
i. Adverse recommendations were made against sta members yet they were
never invited to make representations;
ii. The report was allegedly inaccurate and baseless since relevant people failed
to contribute towards its development. He cited that though the judgment in
Kitale High Court Petition No. 4 of 2015; Timothy Otuya Afubwa & another
vs. The County Government of Trans Nzoia justied the recommendations
of the Taskforce towards a refund of the sum of Kshs. 185 million that was
approved for acquisition of land for the construction of the Trans Nzoia
55
County Referral Hospital, the Court of Appeal in Eldoret Civil Appeal No.
26 of 2017; County Government of Trans Nzoia vs. Timothy Afubwa and
another urged parties to mediate on the dispute since Kshs. 1.6 billion had
already been utilized. Ultimately, a mediation settlement was adopted by the
court on 15/02/2023. The Petitioner stated that those facts were not disclosed
in the report;
iii. The report adversely mentioned the First Governor of the 2nd Respondent at
Chapter 14.1 without aording him an opportunity to make representations.
His conclusion thus was that the Taskforce report was politically motivated.
Further political elements were interpreted from the title page “Natembeya’s
Road to Prosperity’, the 1st Respondent’s campaign tag line;
iv. During the release of the report, the 1st Respondent was accused of making
vindictive remarks about his predecessor when he threatened to move into his
private property and evict him unprocedurally. The 1st Respondent promised
to implement the report immediately.
28. The Petitioner accused the Taskforce of acting ultra vires. For instance, it exceeded its terms of reference
in making some of the recommendations in the report. He disclosed that the Taskforce’s mandate was
only constrained to audit, advise and guide the 2nd Respondent on the status and settlement of the
genuine pending bills, future management of bills and payables to avoid delays and accumulation of
pending bills and human resource management. Furthermore, as per the Gazette notice, the Taskforce
was mandated to concluded its ndings within 30 days from 17th October, 2022. However, they only
published the report on 10th March, 2023 outside those stipulated timelines.
29. The Petitioner then stated that the ndings on pending bills had been tailored to lay a platform for
denial of payment of lawful bills and rent-seeking. It was thus injudicious for the County Government
to implement the 1st Interested Party’s report for lacking procedural fairness.
30. The Petitioner posited that audit reports must generally incorporate the standards set out under the
ISSAIs to include the report on whether the nancial statements present a true and fair view of the
nancial position and performance of the entity, lawfulness and eectiveness in use of public resources
and whether internal controls, risk management and overall governance were eective. In light of the
above, the Petitioner was neurotic that the implementation of the report would aect the operations
of the 2nd Respondent and service delivery to the detriment of the residents of Trans Nzoia.
The Respondents’ case

31. The Respondents entered appearance on 4th April, 2023. They relied on the Replying Adavit of
Truphosa Amere, the 2nd Respondent’s County Secretary, sworn on 3rd April, 2023 and led on 4th
May, 2023, to oppose the Petition in its entirety.
32. The Respondents rejected the Petitioner’s public interest drive urging that here were no constitutional
or statutory violations against the Petitioner or any of the alleged persons.
33. They maintained that the actions of the Respondents insofar as the Taskforce is concerned, did not
in any way abrogate the 1st Interested Party’s mandate. That, the appointment of the Taskforce was
made in line with Article 179 and 235 of the Constitution, Section 31 (d), 59 and 75 of the County
Government Act and Section 155 of the Public Finance Management Act 2012.
56
34. While acknowledging the mandate and powers of the 1st Interested Party to audit nancial accounts,
the Respondents avowed that the said powers were not exclusive as set out in Section 155 of the Public
Finance Management Act, 2012. Under the said provision, the 1st and 2nd Respondents are called upon
to place internal audit measures to ensure prudent expenditure of public nances.
35. The Respondents further justied the appointment of the Taskforce by relying on Section 33 of the
Public Audit Act 2015 which empowers the 1st and 2nd Respondents to implement internal audit
mechanisms independent of the 1st Interested Party.
36. The Respondents found the Petitioner’s protection of the First Governor’s alleged rights as
preposterous as he was neither a party to the Petition nor complained to any person that he was unaware
of the activities of the Taskforce. Further, responding to the allegations that the adversely mentioned
persons were condemned unheard, the Respondent stated as follows: -
a. By didn’t of Gazette Notice dated 21/10/2022 (TA1), all members of the

public were deemed to have been notied of the creation of the Taskforce;
b. All sittings of the Taskforce were communicated to members of the public

through advance notices circulated in the county oces, sub-county oces,
notice boards and ocial social media sites of the 1st and 2nd Respondents
(TA2);
c. The 1st and 2nd Respondents on 11/11/2022 published in a newspaper of

wide circulation a notice (TA3) inviting members of the public to attend and
participate in its sessions.
37. In response to the appointment of FCPA Edward Ouko as Chairperson of the Taskforce, the
Respondents stated that the allegations that he was involved in the 1st and 2nd Respondents’ audits were
baseless. Be that as it may, any previous involvement was purely restricted to audited accounts of the
2nd Respondent.
38. It was deposed that the Taskforce’s scope was restricted to consideration of the pending bills and the
2nd Respondent’s human resource component. As such, it was untrue to allege that the Taskforce’s
mandated was dedicated to look at the 1st and 2nd Respondents’ audited accounts.
39. It was further deposed that there was no conict of interest since the Taskforce’s report did not amount
to an audit of nancial accounts as contemplated in the Public Audit Act 2015.
40. The Respondents continued that the 5th Respondent’s functions as Chair of the Taskforce could not
invalidate the process since any of his decisions could be outvoted by the other 6 members that served
in the Taskforce.
41. The Respondents accused the Petitioner of impeding accountability and promoting corruption and
theft of public resources since he only intended to retain the status quo in operationalization of the
2nd Respondent’s cycle of activities. They unearthed the Petitioner’s motivation in ling the Petition
as burying wrongdoing and shielding those who violated the law.
42. The Respondents defended that the Taskforce implemented their mandate in line with the Gazette
Notice.
43. Finally, the Respondents emphasized that the Constitution had placed signicance on transparency and
accountability in public aairs. That, the principles and values of governance in public service must be
57
deployed transparently and accountably. Thus, where public resources had been utilized to establish
whether public resources were lawfully used, then that action was prudent so long as the same did not
undermine the authority of the 1st Interested Party.
The Petitioner’s submissions

44. The Petition was heard by way of reliance on the pleadings and written submissions. Parties also
supplemented the written submissions with oral highlights.
45. The Petitioner’s written submissions and list and digest of authorities were all dated and led on 2nd
May, 2023. He framed the following issues for determination: -
1. Whether the decision of the 1st Respondent to appoint a Taskforce to audit

the accounts of the County Government of Trans Nzoia is illegal and
unconstitutional?
2. Whether the report of the Taskforce is illegal and unconstitutional?
3. Whether the 1st, 3rd and 4th Respondents’ approval of expenditure of public
funds for use by the Taskforce was illegal and unconstitutional?
46. In his opening address, Learned Counsel for the Petitioner, Mr. Obondi, cited the workmanship of
Philosophers Aristotle and Plato to urge this Court to uphold the rule of law while minding that a
social contract remained between elected leader and the sovereign power of the people.
47. In answering the rst issue as framed, in the armative, the Petitioner dened the term ‘audit’ from
the 8th Edition of Black’s Law Dictionary. Gathered from that denition, the Petitioner submitted that
a plain reading of the scope of the Taskforce could only mean that the assignment was an audit within
the meaning ascribed to the term. He fortied that conclusion by nding that Sections 7, 36 and 38
of the Public Audit Act, Sections 30 and 31 of the County Government Act and Articles 179, 226(3)
and 229 of the Constitution, which establish the role of the 1st Respondent, tted the descriptive scope
carried out by the Taskforce.
48. The Petitioner observed that while the audit of a County Government could take place annually,
periodically or by special audit as set out in Section 9(1)(a) and 34 of the Public Audit Act, that role
could never be commissioned to anyone else other than the 1st Interested Party. He thus critiqued the
opening clause set out in the Gazette Notice as unconstitutional and oending the mandate of the 1st
Respondent set out in Article 179 of the Constitution, Section 30 and 31 of the County Government
Act.
49. Having established that the Taskforce carried out an audit, the Petitioner submitted that the
Respondent acted unconstitutionally for proceeding with the Taskforce’s mandate since an audit is
exclusively reserved for the 1st Interested Party and no natural or juristic person could purport to act as
such. The Petitioner cited several decisions as well as Article 2(2) of the Constitution to conclude that
the 1st Respondent could arrogate himself powers in an attempt to be a law unto himself.
50. The Petitioner further submitted that the Taskforce usurped the role of the 1st Respondent in
contravention of Section 7 of the Public Audit Act as read with Article 226(5) and 229(3) of the
Constitution. He found evidence of usurpation in making audit ndings at page 9, 29, 33, 36, 49, 60
and 62 of the report. Riding on Section 31 of the Public Audit Act and Article 47 of the Constitution,
the Petitioner submitted that the process was unprocedural since those adversely mentioned were not
58
given an opportunity to explain their actions or lack thereof. He set out several instances as found in
pages 77, 92, 93, 112, 131, 236 and 413 – 472 of the bundle.
51. Submitting further on the illegality of the Taskforce report, the Petitioner continued that the 5th
Respondent lacked autonomy and independence as he was conicted. This is because he had audited
the 2nd Respondent from 2013 to 2022 before the creation of the Taskforce. He accused the 1st
Respondent of capriciously handpicking the constituent members.
52. Next, the Petitioner found that the Taskforce illegally exceeded the term of oce which was designed
to only last 30 days.
53. Finally, the Petitioner described the recommendations as illegal, Wednesbury, unreasonable,
unprofessional and egregious. In discussing the last issue as framed, the Petition submitted that the
approved expenditure for use by the Taskforce violated Article 201 and 226 (5) of the Constitution.
54. In further support of the rst issue, the Petitioner cited several decisions including Attorney General
& 2 Others vs. David Ndii & 79 Others (Amicus Curiae) KESC 8 (KLR), Thuranira & 4 Others vs.
Attorney General & 2 Others (2022) KEHC 482 (KLR), Ombati vs. Chief Justice and President of the
Republic of the Supreme Court & Another (2022) KEHC 11630 (KLR), Sabina Wanjiru Chege vs.
Independent Electoral and Boundaries Commission (2022) eKLR and In the Matter of the Speaker
of the Senate & Another (2013) eKLR.
55. Submitting on the second issue, the Petitioner faulted the report on ve areas being the usurpation
of the mandate of the Auditor General, violation of the principles of natural justice, conict of
interest, lack of independence and illegal extension of tenure and illegal, Wednesbury unreasonable
and unprofessional recommendation.
56. The Petitioner argued at length in demonstrating the above. He also referred to the decision in Ahmed
Isaack Hassan vs. Auditor-General (2015) eKLR in urging the violation of the principle of natural
justice and In the Matter of Interim Independent Electoral & Boundaries Commission (2011) eKLR
in buttressing the principle of independence of constitutional organs, commissions and independent
oces.
57. In urging the need to appropriately deal with public funds and not unnecessarily burden the taxpayers,
the Petitioner relied on Nicholas Rono vs. County Secretary County Government of Bomet & 3
Others (2020) eKLR.
58. In the end, the Petitioner reminded the Court that it was discharging delegated powers and the need to
protect public interest. The decision in Odinga & Another vs. IEBC & 2 Others (Presidential Election
Petition No. 1 of 2017) (2017) KESC 42 (KLR) was cited in drawing the curtain to a close.
The Respondents’ submissions

59. The Respondents relied on their written submissions evenly dated and led on 26th May, 2023 to state
that the following issues fell for determination: -
i. Whether the 1st and 2nd Respondents have the powers to appoint a Taskforce;
ii. Whether the scope of the terms of reference of the Taskforce usurps the
Auditor General’s duties;
iii. Whether there was sucient public participation in the formation and
operation of the Taskforce;
59
iv. Whether the operations of the Taskforce amounted to the alleged breach of
the rules of natural justice;
v. Who bears the costs of the suit?
60. Learned Counsel for the Respondents, Mr. Simiyu, cited Articles 174, 179 and 235 of the Constitution,
Section 155 of the Public Finance Management Act and Section 30 and 31 of the County Government
Act as well as several authorities to fortify that the 1st and 2nd Respondents had powers to appoint
persons to assist in the running and management of the aairs of the 2nd Respondent by dint of
devolution.
61. For these reasons, the Taskforce was duly constituted with a view to enhancing transparency and
accountability. It was the Respondents’ view thus that the Petitioner only curtailed this process thereby
negating that very role entrusted upon them.
62. In explaining that the Taskforce’s terms of reference included an audit and human resource
component, the Respondents concluded that they did not usurp the 1st Interested Party’s mandate.
The Respondents further outlined the role of the 1st Interested Party as set out in Article 229 of the
Constitution and Section 7 of the Public Audit Act to state that the audit role was not an exclusive role
and could be delegated. Withal, looking at Section 33 and 155 of the Public Finance Management
Act, the 1st and 2nd Respondents had discretion to place internal audit mechanisms to ensure prudent
expenditure of public nances.
63. Counsel for the Respondents then explained that as per the impugned Gazette Notice, the terms
of reference intended to provide a status of the County for the 2nd Respondent. Since the 1st
Interested Party’s role was limited to audit of the nancial accounts of the National and County
Government for the nancial year, there was neither exclusivity nor usurpation of powers. They thus
accused the Petitioner of narrowly interpreting the Constitution against the cannons of constitutional
interpretation.
64. On whether the 5th Respondent was conicted, the Respondents submitted in the negative as it was
not supported by evidence. He cited Ouma v Orengo & another (Constitutional Petition E001 of
2023) [2023] KEHC 3722 (KLR) (26 April 2023) (Judgment) to state that his experience was a value
addition to the process in any event.
65. On whether there was public participation, the Respondents submitted positively to the extent that it
was not cosmetic but qualitative and quantitative as dened by Courts. They cited several authorities
as well as Article 1, 10 and 174 of the Constitution to nd that the same had met the constitutional and
statutory threshold. Be that as it may, citing several authorities, the Respondents submitted that public
participation did not arise as it was an operational matter of the Taskforce.
66. On whether the operations of the Taskforce amounted to a breach of natural justice, Learned Counsel
submitted that several notices were issued inviting members of the public to participate in the exercise.
That those adversely mentioned in the report had only themselves to blame as they, on their own
volition, elected not to appear before the Taskforce. In addition, they did not le any pleadings
complaining that they were denied an opportunity to make presentations to the Taskforce.
67. Finally, since the Petition lacked basis, the Respondents urged this Court to dismiss the Petition with
costs.
60
The Petitioner’s rejoinder
68. The Petitioner argued that he had the appropriate legal standing to maintain the Petition by dint of
Articles 22 and 258 of the Constitution and previous Court decisions.
69. Responding to the Ouma v Orengo & another case (supra), the Petitioner submitted that the decision
was not only unbinding to this Court, but was distinguishable from the facts and circumstances of this
case. He thus urged this Court to disregard the same.
70. Lastly, on whether appropriate arrangements for conducting internal audit included the appointment
of the impugned Taskforce, the Petitioner cited Regulations 155, 156 and 167(4) of the Public Finance
Management (County Governments) Regulations 2015 to state that the same did not apply to the
Taskforce.
71. In the end, the Petitioner reiterated his calling that the Petition be allowed as prayed.
Analysis
72. Having carefully considered the Petition, the Adavits in support and in opposition and the annexures
attached thereto, the following arise as the main issues of discussion: -
a. Principles of constitutional interpretation.
b. Whether the appointment of the Taskforce on Pending Bills and Human

Resource Audit (hereinafter referred to as ‘the Taskforce’) contravenes Articles
174, 179, 226(3), 229 and 235 of the Constitution by usurping the powers of
the Auditor General, hence, unconstitutional.
c. Whether the establishment of the Taskforce contravened Articles 10 and

201(a) of the Constitution for want of adequate public participation.
d. Whether the Taskforce carried out its duties within the calling of Articles 47
and 50 of the Constitution by according the aected parties’ fair administrative
procedures including an opportunity to be heard.
e. Remedies, if any.
73. The Court will now deal with the above issues in seriatim.
Principles of constitutional interpretation:

74. Constitutional interpretation also referred to as Judicial interpretation is the legal creativity of
attributing or assigning meaning to the provisions of the Constitution.
75. The Constitution is a document sui generis. It is the supreme law of the land and its interpretation has
over time been developed by Courts and scholars both locally and internationally.
76. Locally, Superior Courts have made pronouncements on how the Constitution ought to be interpreted.
In David Ndii & Others v Attorney General & Others [2021] eKLR, the Learned Judges, while
referring to various decision of the Apex Court and the Court of Appeal spoke to the subject as follows:
-
399. One of the imports of recognition of the nature of the transformative character
of our Constitution is that it has informed our methods of constitutional
61
interpretation. In particular, the following four constitutional interpretive
principles have emerged from our jurisprudence:
a. First, the Constitution must be interpreted holistically;

only a structural holistic approach breathes life into
the Constitution in the way it was intended by the
framers. Hence, the Supreme Court has stated in In
the Matter of the Kenya National Commission on
Human Rights, Supreme Court Advisory Opinion
Reference No. 1 of 2012; [2014] eKLR thus (at
paragraph 26):
"But what is meant by a holistic

interpretation of the Constitution? It
must mean interpreting the Constitution
in context. It is contextual analysis of
a constitutional provision, reading it
alongside and against other provisions, so
as to maintain a rational explication of
what the Constitution must be taken to
mean in the light of its history, of the
issues in dispute, and of the prevailing
circumstances."
b) Second, our Transformative Constitution does not

favour formalistic approaches to its interpretation.
It must not be interpreted as one would a mere
statute. The Supreme Court pronounced itself on
this principle in Re Interim Independent Election
Commission [2011] eKLR, para [86] thus:
The rules of constitutional interpretation

do not favour formalistic or positivistic
approaches (Articles 20(4) and 259(1)).
The Constitution has incorporated non-
legal considerations, which we must take
into account, in exercising our jurisdiction.
The Constitution has a most modern Bill
of Rights, that envisions a human rights
based, and social-justice oriented State
and society. The values and principles
articulated in the Preamble, in Article 10,
in Chapter 6, and in various provisions,
reect historical, economic, social, cultural
and political realities and aspirations that
are critical in building a robust, patriotic
and indigenous jurisprudence for Kenya.
Article 159(1) states that judicial authority
is derived from the people. That authority
62
must be reected in the decisions made by
the Courts.
c) Third, the Constitution has provided its own theory of

interpretation to protect and preserve is values, objects
and purposes. As the Retired CJ Mutunga expressed
in his concurring opinion in In In Re the Speaker of
the Senate & Another v Attorney General & 4 Others,
Supreme Court Advisory Opinion No. 2 of 2013;
[2013] eKLR. (paragraphs 155-157):
(155) In both my respective

dissenting and concurring
opinions, In the Matter
of the Principle of
Gender Representation in
the National Assembly and
Senate, Sup Ct Appl No 2 of
2012; and Jasbir Singh Rai& 3
Others v Tarlochan Singh Rai
and 4 Others Sup Ct Petition
No 4 of 2012, I argued
that both the Constitution,
2010 and the Supreme
Court Act, 2011 provide
comprehensive interpretative
frameworks upon which
fundamental hooks, pillars,
and solid foundations
for the interpreting our
Constitution should be
based. In both opinions, I
provided the interpretative
coordinates that should
guide our jurisprudential
journey, as we identify
the core provisions of our
Constitution, understand its
content, and determine its
intended eect.
(156) The Supreme Court of

Kenya, in the exercise of
the powers vested in it
by the Constitution, has a
solemn duty and a clear
obligation to provide rm
and recognizable reference-
points that the lower Courts
63
and other institutions can
rely on, when they are
called upon to interpret
the Constitution. Each matter
that comes before the Court
must be seized upon as
an opportunity to provide
high-yielding interpretative
guidance on the Constitution;
and this must be done in
a manner that advances its
purposes, gives eect to its
intents, and illuminates its
contents. The Court must
also remain conscious of
the fact that constitution-
making requires compromise,
which can occasionally lead to
contradictions; and that the
political and social demands
of compromise that mark
constitutional moments,
fertilize vagueness in
phraseology and
draftsmanship. It is to the
Courts that the country
turns, in order to resolve
these contradictions; clarify
draftsmanship gaps; and settle
constitutional disputes. In
other words, constitution
making does not end with
its promulgation; it continues
with its interpretation. It is
the duty of the Court to
illuminate legal penumbras
that Constitution borne out
of long drawn compromises,
such as ours, tend to create.
The Constitutional text and
letter may not properly
express the minds of the
framers, and the minds and
hands of the framers may
also fail to properly mine the
aspirations of the people. It
is in this context that the
spirit of the Constitution has
64
to be invoked by the Court
as the searchlight for the
illumination and elimination
of these legal penumbras.
d) Fourthly, in interpreting Constitution of Kenya,

2010, non-legal considerations are important to give
its true meaning and values. The Supreme Court
expounded about the incorporation of the non-legal
considerations and their importance in constitutional
interpretation in the Communications Commission
of Kenya Case. It stated thus:
(356) We revisit once again

the critical theory of
constitutional-interpretation
and relate it to the emerging
human rights jurisprudence
based on Chapter Four
– The Bill of Rights
– of our Constitution.
The fundamental right in
question in this case is
the freedom and the
independence of the media.
We have taken this
opportunity to illustrate how
historical, economic, social,
cultural, and political content
is fundamentally critical
in discerning the various
provisions of the Constitution
that pronounce on its theory
of interpretation. A brief
narrative of the historical,
economic, social, cultural,
and political background to
Articles 4(2), 33, 34, and 35
of our Constitution has been
given above in paragraphs
145-163.
(357) We begin with the concurring

opinion of the CJ and
President in Gatirau Peter
Munya v. Dickson Mwenda
Kithinji & 2 Others, Supreme
Court Petition No. 2B of
2014 left o (see paragraphs
65
227- 232). In paragraphs 232
and 233 he stated thus:
(232) …
References
to
Black’s
Law
Dictionary
will
not,
therefore,
always
be
enough,
and
references
to
foreign
cases
will
have
to
take
into
account
these
peculiar
Kenyan
needs
and
contexts.
(233) It is
possible
to set
out
the
ingredients
of the
theory
of the
interpretation
of the
Constitution:
the
theory
is
derived
66
from
the
Constitution
through
conceptions
that
my
dissenting
and
concurring
opinions
have
signalled,
as
examples
of
interpretative
coordinates;
it is
also
derived
from
the
provisions
of
Section
3 of
the
Supreme
Court
Act,
that
introduce
non-
legal
phenomena
into
the
interpretation
of the
Constitution,
so as
to
enrich
the
jurisprudence
evolved
while
67
interpreting
all its
provisions;
and
the
strands
emerging
from
the
various
chapters
also
crystallize
this
theory.
Ultimately,
therefore,
this
Court
as the
custodian
of the
norm
of the
Constitution
has to
oversee
the
coherence,
certainty,
harmony,
predictability,
uniformity,
and
stability
of
various
interpretative
frameworks
dully
authorized.
The
overall
objective
of the
interpretative
theory,
in the
68
terms
of the
Supreme
Court
Act, is
to
“facilitate
the
social,
economic
and
political
growth”
of
Kenya.
400. With these interpretive principles in mind, which we will call the Canon of
constitutional interpretation principles to our Transformative Constitution,
we will presently return to the transcendental question posed in these
Consolidated Petitions…...
77. The Court of Appeal also spoke to constitutional interpretation in Centre for Rights Education and
Awareness & another v John Harun Mwau & 6 others [2012] eKLR when it made the following
remarks: -
(21) …. Before the High Court embarked on the interpretation of the

contentious provisions of the Constitution, it restated the relevant principles of
interpretation of the Constitution as extracted from case law thus: -
a. that as provided by Article 259 the Constitution

should be interpreted in a manner that promotes
its purposes, values and principles; advances rule of
law, human rights and fundamental freedoms and
permits development of the law and contributes to
good governance.
b. that the spirit and tenor of the Constitution

must preside and permeate the process of judicial
interpretation and judicial discretion.
c. that the Constitution must be interpreted broadly,

liberally and purposively so as to avoid “the austerity
of tabulated legalism.
d. that the entire Constitution has to be read as an

integrated whole and no one particular provision
destroying the other but each sustaining the other as
to eectuate the great purpose of the instrument (the
harmonization principle).
69
e. …… The court as an independent arbiter of the
Constitution has delity to the Constitution and has to
be guided by the letter and spirit of the Constitution.
78. With the above legal guidance, the Court will now deal with the rest of the issues.
Whether the appointment of the Taskforce contravenes Articles 174, 179, 226(3), 229 and 235 of
the Constitution by usurping the powers of the Auditor General, hence, unconstitutional:
79. The rival parties’ positions have already been captured above. To be able to deal with this issue
appropriately, this Court will look at both the constitutional and statutory underpinnings relating to
audits in public service in Kenya.
80. Article 226 of the Constitution provides for accounts and audit of public entities. The provision calls
for the enactment of an Act of Parliament to provide for the keeping of nancial records and the
auditing of accounts of all governments and other public entities, and to prescribe other measures for
securing ecient and transparent scal management; and the designation of an accounting ocer in
every public entity at the national and county level of government.
81. Article 226(3) of the Constitutionplainly states thatthe accounts of all governments and State organs
shall be audited by the Auditor-General. In sub-article (4), the accounts of the oce of the Auditor-
General are to be audited and reported on by a professionally qualied Accountant appointed by the
National Assembly.
82. Article 229(1) of the Constitution creates the independent oce of the Auditor-General. Once
appointed, the Auditor-General undertakes the mandate in sub-article 4, which is cut out as under: -
229. …….
(4) Within six months after the end of each nancial year,
the Auditor-General shall audit and report, in respect
of that nancial year, on -
(a) the accounts of the national

and county governments;
(b) the accounts of all funds and

authorities of the national
and county governments;
(c) the accounts of all courts;
(d) the accounts of every

commission and independent
oce established by this
Constitution;
(e) the accounts of the National

Assembly, the Senate and the
county assemblies;
70
(f) the accounts of political
parties funded from public
funds;
(g) the public debt; and
(h) the accounts of any other

entity that legislation requires
the Auditor-General to audit.
83. Further, under sub-article 5, the Auditor-General has the liberty to audit and report on the accounts
of any entity that is funded from public funds.
84. The principal purpose of the audits is, according to sub-article 6, to conrm whether or not public
money has been applied lawfully and in an eective way.
85. Once an audit report is generated, it is then submitted to Parliament or the relevant county assembly, as
the case may be, where, within three months after receiving an audit report, Parliament or the county
assembly must debate and consider the report and take appropriate action.
86. To enable the Auditor-General discharge its duties aforesaid, Parliament passed several legislations.
One of them is the Public Audit Act, No. 34 of 2015. The said statute provides in its preamble that it
is an Act of Parliament to provide for the functions and powers of the Oce of the Auditor-General
in accordance with the Constitution, and for connected purposes.
87. Section 4 of the Public Audit Act, commands the Oce of the Auditor-General to ensure reasonable
access to its services in all parts of the Republic and may establish branches at any place in Kenya.
88. Further to the functions and responsibilities of the Auditor-General as set out in Article 229 of the
Constitution, Section 7 of the Public Audit Act, provides the following other functions: -
(1) In addition ……. -
(a) give assurance on the eectiveness of internal controls,

risk management and overall governance at national
and county government;
(b) undertake audit activities in state organs and public

entities to conrm whether or not public money has
been applied lawfully and in an eective way;
(c) satisfy himself or herself that all public money has

been used and applied to the purposes intended and
that the expenditure conforms to the authority for
such expenditure;
(d) conform that—
(i) all reasonable precautions

have been taken to safeguard
the collection of revenue
and the acquisition, receipt,
issuance and proper use of
assets and liabilities; and
71
(ii) collection of revenue and
acquisition, receipt, issuance
and proper use of assets and
liabilities conforms to the
authority;
(e) issue an audit report in accordance with Article 229 of

the Constitution;
(f) provide any other reports as may be required under

Article 254 of the Constitution; and
(g) perform any other function as may be prescribed by

any other written legislation.
(2) Without prejudice to the generality of subsection (1), the Auditor-General

may undertake any audits required under the Constitution, this Act or any
other relevant law.
89. The powers of the Auditor-General are provided for in Section 9 of the Public Audit Act, which
includes: -
(a) to conduct investigations on his or her own initiative, or on the basis of a

complaint made by a third party;
(b) to obtain professional assistance, consultancy or advice from such persons or

organizations whether within or outside public service as he/she considers
appropriate;
(c) of conciliation, mediation and negotiation;
(d) to issue summons to a witness for the purposes of his or her investigation;
(e) of unrestricted access to-
(i) all books, records, returns, reports, electronic or

otherwise and other documents of entities listed under
Article 229 (4) of the Constitution;
(ii) any property or premises used or held by State Organs

or public entities covered by Article 229 (4) of the
Constitution and subject to audit under this Act,
Provided that such access is reasonably necessary, in
the opinion of the Auditor-General, in carrying out
his or her functions;
(f) to request any public ocer that is subject to this Act to provide explanations,
information and assistance in person and in writing;
(g) to locate any of his or her sta or an agent, for a time period to be determined by
the Auditor-General, at the premises of any State Organ or public entity that
is the subject of an audit or examination or review and that entity shall provide
72
access to sta or agent and adequate oce space, furniture and telephone access
at the expenses of that State Organ or public entity;
(h) to identify the origin of a transaction or ocer who directed or approved it,
where he or she has determined inaction, omissions, misuse or abuse of public
resources by a public ocer; and
(i) to perform any function and exercise any powers prescribed by any other
legislation, in addition to the functions and powers conferred by the
Constitution.
(j) require a search to be made of any records in a public oce;
(k) require copies to be made of, or extracts to be taken from, any records in a
public oce;
(l) seize or access or obtain ocial electronic messages to the extent that it is
necessary for purposes of undertaking an investigation or forensic audit in
entities listed under Article 229 (4) of the Constitution; and
(m) solicit assistance of other National and County governments agencies in the
exercise of his/her responsibilities under the Constitution, this Act or any other
written law.
90. According to Section 29 of the Public Audit Act all audits undertaken by the Auditor-General shall
be subject to the Constitution and any written law and that, in discharging its functions, the Oce
of the Auditor-General shall apply the applicable international standards, principles and practices in
their audits. Under Section 30 of the Public Audit Act, the Auditor-General, subject to the provisions
of Articles 201 and 232 of the Constitution, determines the scope and extent of the examination or
inspection of accounts and any other documents or information related to public expenditures or
any other audits under which the Auditor-General considers necessary in carrying out his or her
responsibilities and functions.
91. Section 31 of the Public Audit Act provides for how the processes of audit shall be undertaken.
92. The audits under Article 229 of the Constitution, may take the form of Annual nancial audits,
Performance audits or Procurement audits.
93. The Annual nancial audits refer to the audits undertaken under Article 229 of the Constitution.
They are undertaken for State Organs and public entities and the Auditor-General reports annually to
Parliament and relevant county assembly. Performance audits are conducted to examine the economy,
eciency and eectiveness with which public money has been expended pursuant to Article 229 of the
Constitution. These audits usually relate to projects implementation. In doing so, the Auditor-General
evaluates, whether the citizen has gotten value for money in the project. The Report is also submitted
to Parliament or County Assembly for tabling and debate.
94. In Procurement audits, the Auditor-General examines the public procurement and asset disposal
processes of a state organ or a public entity with a view to conrm as to whether procurements were
done lawfully and in an eective way. The Report is also submitted to Parliament or County Assembly
for tabling and debate. These are provided for under Section 36 of the Public Audit Act.
73
95. Apart from the above three types of audits which the Auditor-General may undertake under Article
229 of the Constitution, there are other two types of audits which the Auditor-General may, as well,
undertake. They are, as follows: -
(i) Periodic audits.
(ii) Forensic audits.
96. Periodic audits are provided for under Section 34 of the Public Audit Act. These may be undertaken
by the Auditor-General at his or her own initiative or upon request by an entity. These audits are
proactive, preventive, and deterrent to fraud and corrupt practices, systemic and are usually carried out
to determine and evaluate the eectiveness of risk management, control and governance processes in
State Organs and public entities.
97. Section 37 of the Public Audit Act is on Forensic audits. These are audits requested by Parliament and
County Assemblies to establish fraud, corruption or other nancial improprieties in State Organs and
public entities.
98. Regardless of the type of an audit, all audit reports must be submitted to Parliament or the relevant
county assembly, as the case may be. The Reports must also contain recommendations on how a State
Organ or public entity may improve the application of funds in a lawful and in an eective way and
how responsive the State organ or public entity has been to past audit ndings and recommendations.
99. It is also of importance to note that the Auditor-General has powers to prepare Special Reports in
the course of an examination and audits. These reports are on matters that come to the attention of
the Auditor-General and the Auditor-General feels should immediately be brought to the attention of
Parliament or the relevant County Assembly.
100. Further, the Auditor-General may outsource audit services pursuant to Section 23 of the Public Audit
Act.The Auditor may also engage the services of or work in consultation with professional or technical
experts or consultants, whether in the public service or not, to enhance its performance. That is
provided for in Section 24 of the Public Audit Act.
101. Apart from the Oce of the Auditor-General, there is also the Audit Advisory Board established under
Section 25 of the Public Audit Act. Its main function is to advise the Auditor-General on the exercise
of its powers and the performance of the functions under the Constitution and the law.
102. There are, of course, other legislations which variously provide for the audit roles in Kenya. Another
one is the Public Finance Management Act (hereinafter referred to as ‘the PMFA’) and the Regulations
thereunder.
103. The foregoing is the general constitutional and legislative framework of audits in Kenya. A closer look
thereof reveals that there is a deliberate design by the people of Kenya and Parliament to ensure that,
on the basis of public audits, State organs and public entities are protected from pilferage and waste of
public resources and those culpable are accordingly dealt with. For instance, under Article 226(5) of
the Constitution, if the holder of a public oce, including a political oce, directs or approves the use
of public funds contrary to law or instructions, the person is liable for any loss arising from that use
and shall make good the loss, whether the person remains the holder of the oce or not.
104. The Constitution and the Public Audit Act further mandates Parliament and County Assemblies to
debate on the audit reports and make appropriate resolutions including referring matters for further
investigations by other entities. The Auditor-General can also refer matters for further investigations
to the relevant entities. Further, the Public Audit Act and other legislations create criminal oences.
74
105. Parliament and County Assemblies may also recommend the withholding of funds to a State Organ
or public entity or the surcharging of monies found decient or lost in State Organs or public entities.
106. It is, therefore, against the foregoing background that the 1st Respondent found it t to, and,
established a Taskforce to carry out an audit exercise. The Taskforce was appointed vide Kenya Gazette
(Vol CXXIV-No.218) Notice No. 12643 which was published on 21st October, 2022. The notice read
as follows: -
Notice is given to the general public that in exercise of powers conferred to me by Article 179
of the Constitution of Kenya 2010 and Sections 30 and 31 of the County Governments Act,
I appoint a taskforce for the verication of Trans Nzoia County Pending Bills and Human
Resource Audit. The purposes of the Taskforce is to advise and guide on the settlement of
genuine pending bills and undertake an audit of human resource and sta establishment of
Trans Nzoia County Government.
The Taskforce shall consist of:
Name
Position
Edward Ouko
Chairperson
Jamin Kwanusu
Secretary
Alex Rugeru
Member
Chris Wasike Mung’oma
Member
Imelda Midzukani Aruula
Member
Kirato Wanjala Wanyonyi
Member
Jared Rodrick Nyaundi
Member
The Terms of Reference for Trans Nzoia County Pending Bills and Human
Resource Audit are to –
a. obtain a full list of the Pending bills as the 8th August

2022;
b. obtain request(s) for review of bill(s) from the aected

supplier(s) contained in the bills’ list;
c. record description of the works done, goods supplied,

services given and dates including exact locations;
75
d. obtain evidence of delivery/performance or reports (for
consultancy services);
e. obtain evidence of receipt of goods and services/

performance;
f. carry out (where applicable) physical verication

including circumstantial and corroborative evidence of
work done and delivery;
g. quantify and evaluate value for money of the work done,

goods delivered, or services given;
h. advise Trans Nzoia County Government on an

appropriate arrangement of payment of the veried
pending bills that is open, equitable, accountable and
practical;
i. advise on future management of bills and payables to

avoid delayed payments;
j. conrm the total number of county sta and the sta put
on payroll;
k. review the sta establishment, both the IPPD and the

manual payroll, in terms of optimum numbers, in-post,
station and duties assigned;
l. obtain schedules indicating the statutory deductions

such as NHIF, NSSF, PAYE and conrm remittance to
the relevant statutory authorities;
m. conrm the total percentage of wage bill against the

acceptable level;
n. review all the processes relating to recruitment, selection,

appointments, training, promotions, re-designations,
employee benets and payroll administration and
identify any gaps/non-compliance/short comings;
o. determine whether there has been recruitments/hiring/

processing of salaries that has not been properly
authorized and recorded;
p. Compile report with recommendations of actions that

the county should undertake to ensure compliance with
labour laws.
In performance of its functions, the Taskforce –
a. shall hold such number of meetings at such places and such times
and review all documents that are required as the Taskforce may
consider necessary for the proper discharge of its mandate;
76
b. shall have access to reports of any previous investigations relevant to
its mandate;
c. shall, as it considers appropriate, carry out or cause to be carried out

such studies or research as may inform the Taskforce on its mandate;
d. subject to the foregoing, the Taskforce shall have all the

independence necessary for carrying out its function or expedient
for the proper execution of its mandate;
e. deliberations on the Taskforce shall remain condential and

members shall execute a condentiality agreement;
f. the Taskforce may summon any current or former member of sta

of the County or any person to provide any given information that
would held the Taskforce in its work; and
g. The Taskforce may co-opt any person, whose knowledge, skills or

competencies may be necessary to facilitate its work.
The Secretariat of the Taskforce

The Secretariat of the Taskforce shall be based at the oce of the Governor, County
Government Headquarters and shall be responsible to the Taskforce for –
a. providing appropriate background brief to the Taskforce;
b. preparing the Taskforce’s report and disseminating any information

deemed relevant to the Taskforce;
c. coordinating the provision of all documents required to facilitate

the work of the Taskforce from the relevant departments;
d. undertaking research and liaising with the relevant National and

County Government Departments and any other institution in
order to gather relevant information necessary for informing the
Taskforce;
e. Providing logistical support including vehicles and meeting venues.
Tenure
The assignment shall take thirty (30) days commencing 17th October 2022, but the same
may be with justiable reason be extended for such other period as it may be considered
necessary. At completion of the assignment the Taskforce shall handover the report to the
Governor with appropriate recommendations.
Remuneration
The remuneration of members of the Taskforce, Secretariat and support sta shall be as the
applicable Salaries and Remuneration Commission’s guidelines contained in the relevant
circulars.
Dated 12th October 2022
George Natembeya,
77
Mr/4300123 Governor,
Trans Nzoia County.
107. In sum, the Taskforce had the duty of establishing pending bills that were genuinely incurred and to
ascertain the actual number of stas of the County Government of Trans Nzoia.
108. The inevitable question which now begs an answer is whether the issue of pending bills and human
resource could be dealt with under the constitutional and legislative framework which has been
discussed above.
109. The answer to the above question cannot be a tall order. The issues of pending bills and human resource
relate to prudent use of public nances. Such issues are usually captured under the audits undertaken
pursuant to Article 229 of the Constitution. As discussed above, the audits contemplated under Article
229 of the Constitution, are Annual nancial audits, Performance audits or Procurement audits.
110. If for instance the twin issues were, for any reason, not properly captured under the reports prepared
pursuant to Article 229 of the Constitution, still the County Government had the leeway of requesting
the Auditor-General to carry out a periodic audit. Further, the County Government could also have
requested the County Assembly of Trans Nzoia to sanction the Auditor-General to carry out a forensic
audit.
111. Having said so, what now follows is a consideration as to whether the Taskforce is in line with the above
constitutional and legal framework of audits in Kenya.
112. To that end, the Respondents argued that the Governor acted within Articles 174, 179 and 235 of
the Constitution, Section 155 of the Public Finance Management Act and Sections 30 and 31 of the
County Government Act to appoint persons to assist in the running and management of the aairs
of the 2nd Respondent by dint of devolution.
113. It was further argued that Article 229 of the Constitution and Section 7 of the Public Audit Act that
the audit role was not an exclusive role and could be delegated more so, under Sections 33 and 155 of
the Public Finance Management Act, the 1st and 2nd Respondents had discretion to place internal audit
mechanisms to ensure prudent expenditure of public nances.
114. As earlier on stated, Article 174 of the Constitution provides for the objects of devolution. They are nine
of them including the promotion of democratic and accountable exercise of power,enhancement of
checks and balances and the separation of powers, among others. Article 179 of the Constitution, in the
context of this matter, asserts the position that the Governor is the Chief Executive Ocer of a county.
Article 235 of the Constitution is on the stang of County Governments. Such is to be undertaken
within a framework of uniform norms and standards prescribed by an Act of Parliament.
115. Before addressing the above constitutional and legal provisions, this Court will deal with the argument
that the public audit role is not an exclusive to the Auditor-General. Reference was made to Sections
33 and 155 of the PFMA. Section 33 of the PFMA calls upon the Cabinet Secretary to submit
the National Government Debt Management Strategy Paper to Parliament annually. The paper is a
statement setting out the debt management strategy of the national government over the medium term
with respect to its actual liability and potential liability in respect of loans and guarantees and its plans
for dealing with those liabilities. The paper, respectfully, is not any form of audit. The paper is just a
strategy employed by the national government on debt management.
116. Section 155 of the PMFAprovides for the need of a County Government to maintain internal auditing
arrangements. In so doing, a County Government is required to establish an Internal Auditing
78
Committee whose composition and functions are to be prescribed by the appropriate regulations. The
regulations in this case are the Public Finance Management (County Governments) Regulations 2015
(hereinafter referred to as ‘the Regulations’).
117. In Part XIII, the Regulations provide for Internal Audit and Audit Committees. Regulation 156
creates the oce of the County Head of Internal Audit Services. The oce is in the County
Treasury.The Head of Internal Audit unit enjoys operational independence through the reporting
structure by reporting administratively to the Accounting Ocer and functionally to the Audit
Committee.
118. The role of the internal audit oce is to review and evaluate budgetary performance, nancial
management, transparency and accountability mechanisms and processes in County Government
entities, including the County Assembly. It also has the duty to give reasonable assurance through the
Audit committee on the state of risk management, control and governance within the organization and
to also review the eectiveness of the nancial and non-nancial performance management systems
of the entities.
119. Under Regulation 167, each County Government is to establish an Audit Committee. The committee
comprises of between 3 and 5 members. The main function of the Audit committee is twofold. One,
the committee supports the accounting ocers with regard to their responsibilities for issues of risk,
control and governance and associated assurance, and, two, it follows up on the implementation of the
recommendations of internal and external auditors.
120. Therefore, the Internal Audit oce and the Audit Committees are oces within a County
government. Their work can, however, be used by the Auditor-General under Section 33 of the Public
Audit Act as follows:
33. Use of work of internal auditor:
(1) The nal report by an internal auditor which has been

deliberated on and adopted by an audit committee of
a State Organ or public entity, may be copied to the
Auditor-General.
(2) The Auditor-General shall have unhindered access to

all internal audit reports of a State Organ or any public
entity, under subsection (1) above, which is subject to
audit by the Auditor-General as provided for under
Article 229(4) of the Constitution.
121. The upshot is that the entities provided for in Section 155 of the PMFA and the Regulations are
internal entities and are limited to undertaking audit roles within the County Government entities
unlike the Auditor-General who is an external entity with jurisdiction across the country.
122. On the basis of the above, it is apparent that the constitutional and statutory provisions referred to by
the Respondents do not upset the foregoing.
123. It, therefore, means that according to the Constitution and the law, external audits of a State organ or
public entity are to be carried principally by the Auditor-General. That is expressly so stated under
Article 226(3) and (4) of the Constitution, thus: -
(3) Subject to clause (4), the accounts of all governments and State organs shall be
audited by the Auditor-General.
79
(4) The accounts of the oce of the Auditor-General shall be audited and
reported on by a professionally qualied accountant appointed by the
National Assembly.
124. The argument propounded by the Respondents does not, therefore, hold. It runs contra the
Constitution. As it stands, the Governor created an entity unknown in the Constitution and the law
and mandated it to discharge duties which the Constitution and the law bestowed upon the Auditor-
General and the County Government. That is an outright usurpation of the constitutional and
legislative duty and powers of the Auditor-General, the County’s Internal Audit oce as well as the
Audit Committee.
125. There is yet another complication raised by the creation of the Taskforce. According to the Constitution
and the Public Audit Act, the reports prepared by or under the sanction of the Auditor-General are
forwarded to Parliament and the County Assemblies, as the case may be. There is, however, in this case,
no provision which allows the placement of the report by the Taskforce before the Trans Nzoia County
Assembly. It, hence, means that the report cannot be legally adopted and debated by the Trans Nzoia
County Assembly. Likewise, no resolutions can be made on it. Further, any recommendations and
sanctions, if any, as contemplated in law cannot be implemented for want of legality. One, therefore,
wonders how the report will be of any benet to the County Government.
126. In light of the foregoing, this Court does not nd any diculty in nding that the Taskforce was
neither established nor sanctioned by the Auditor-General. The Taskforce was also not part of the
Internal Audit oce or the Audit Committee of the County Government. To that end, and in keeping
with the principles of constitutional interpretation, the establishment of the Taskforce contravened
Articles 174(a) and (i), 226(3) and 229 of the Constitution, the Public Audit Act, the Public Finance
Management Act and Public Finance Management (County Governments) Regulations 2015 by
usurping the powers of the Auditor General and those of the Internal Audit oce or the Audit
Committee of the County Government.
127. Having found that the establishment of the Taskforce is unconstitutional for being an entity unknown
within the Constitution and the law and having usurped the powers of the Attorney General and those
of the Internal Audit oce or the Audit Committee of the County Government, and in the unique
circumstances of this matter, it readily comes to the mind of this Court that in most cases when a new
incoming Governor takes oce, there is the desire to start the tenure on a clean platform and to readily
understand all nancial and governance issues in the County.
128. That is, indeed constitutionally expected of any Governor holding oce. However, whereas the
Governor is the Chief Executive Ocer of a County, he is like a caged animal, only able to move, but
within the cage. In this case, the cage is the Constitution and the law. The Governor remains at liberty to
dispense with all the wide powers accorded to the oce, but only in accordance with the Constitution
and the law. That is the hallmark of Article 10 of the Constitution.
129. The rst port of call of a Governor who wishes to carry out an audit of the County must be the
Constitution and the law. If for any reason, the Governor nds the audit reports by the Auditor-
General prepared under Article 229 of the Constitution to be inadequate, this Court nds that the
appropriate procedure to be undertaken is for the Governor to request the Auditor-General for a
periodic audit. Further, the Governor may request the County Assembly to sanction the Auditor-
General to undertake a forensic audit.
130. However, in a case where the Governor wishes to have the audit undertaken by another qualied
auditor other than the Auditor-General, this Court nds that such a request should be made to the
80
Auditor-General to either outsource the service pursuant to Section 23 of the Public Audit Act or to
seek professional assistance and consultancy under Section 24 of the Public Audit Act. In any case, the
Auditor-General will render a decision and in the event the Governor is not satised with the decision,
a legal challenge may be maintained.
131. The reason why it is of paramount importance to have the sanction of the Auditor-General in the
above scenarios is to ensure that the resultant audit report is eventually presented before the County
Assembly, debated and the resolutions thereof accordingly acted upon.
132. Returning to the case at hand, and having found the establishment of the Taskforce unconstitutional,
this Court does not nd it prudent to deal with issues (c) and (d) as framed since, they are automatically
subsumed by the declaration of unconstitutionality.
133. However, albeit so briey, had this Court found that the establishment of the Taskforce was within the
constitutional connes, it would have gone ahead to nd against issue (c). For clarity, this Court would
have found that the establishment of the Taskforce did not require any form of public engagement
since the decision to establish the Taskforce would have been one of those which deal with the day-to-
day operations of the County Government. Such decisions, as opposed to those which transcends the
boundaries of internal decisions, do not call for any form of public participation. (See Mombasa High
Court Constitutional Petition No. 159 of 2018 consolidated with Constitutional Petition No. 201
of 2019 William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human
Rights & 2 others (Interested Parties) (2020) eKLR.
134. Likewise, this Court would have found issue (d) in the armative. There is no evidence to nd that
Articles 47 and 50 of the Constitution were in any way infringed in the manner the Taskforce carried
out its duties. The Petitioner did not, at least, le any disposition by any aected party to that end. (See
proof of constitutional petitions as discussed in William Odhiambo Ramogi & 3 others v Attorney
General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) case (supra).
135. The Court will now look at the appropriate remedies in view of the above ndings.
Remedies:
136. In determining the remedies, this Court remains alive to the fact that the Taskforce completed its task,
prepared a report and presented to it to the Governor. The submission was on 10th March, 2023. That
is around 6 months ago.
137. By now, there is no doubt the report may have been fully implemented or substantively so.
On one hand, public resources were expended by the Taskforce. On the other hand, despite the
unconstitutionality, the report may have yielded impressive ndings and appealing recommendations.
This Court also notes that it has not found any infraction of the Bill of Rights by the Respondents.
138. It remains unclear to this Court why the Petitioner had to wait for the Taskforce to fully undertake
its mandate, present its report and then lodge the instant Petition about two months later. There is
obvious delay on the part of the Petitioner. Had the Petition been led during the time when the
Taskforce was still carrying out its mandate, or even earlier, this Court would have been placed in
a position to determine the suitability or otherwise of conservatory orders. However, that did not
happen. The upshot is that the Petitioner is guilty of laches. In such a scenario, the maxim of equity
that equity aids the vigilant and not the indolent applies. As it is today, equity is no longer an equitable
remedy, it was elevated under Article 10(2)(b) of the Constitution to a constitutional principle. (See the
Court of Appeal in Willy Kimutai Kitilit v Michael Kibet [2018] eKLR).
81
139. Resulting from the above, both the Petitioner and Respondents are guilty of infringing the Constitution
in one way or the other.
140. This Court must, therefore, guard against a scenario where more public resources will be spent
in legal challenges emanating from the implementation of the report and the declaration of the
unconstitutionality in this decision. A balance, therefore, ought to be struck.
141. Article 23 of the Constitution provides for remedies in constitutional infractions. They include
declaration of rights, injunctions, conservatory orders, declaration of invalidity of any law that denies,
violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justied
under Article 24, an order for compensation, an order of judicial review among others.
142. The Court of Appeal in Total Kenya Limited vs Kenya Revenue Authority (2013) eKLR held that
even in instances where there are express provisions on specic reliefs a Court is not precluded from
making any other orders under its inherent jurisdiction for ends of justice to be met to the parties.
143. In Republic Ex Parte Chudasama vs. The Chief Magistrate’s Court, Nairobi and Another Nairobi
HCCC No. 473 of 2006, [2008] 2 EA 311, Rawal, J (as she then was) stated that:
While protecting fundamental rights, the Court has power to fashion new remedies as there
is no limitation on what the Court can do. Any limitation of its powers can only derive
from the Constitution itself. Not only can the court enlarge old remedies, it can invent new
ones as well if that is what it takes or is necessary in an appropriate case to secure and
vindicate the rights breached. Anything less would mean that the Court itself, instead of
being the protector, defender, and guarantor of the constitutional rights would be guilty of
the most serious betrayal. See Gaily vs. Attorney-General [2001] 2 RC 671; Ramanoop vs.
Attorney General [2004] Law Reports of Commonwealth (From High Court of Trinidad
and Tobago); Wanjuguna vs. Republic [2004] KLR 520…The Court is always faced with
variety of facts and circumstances and to place it into a straight jacket of a procedure,
especially in the eld of very important, sensitive and special jurisdiction touching on
liberties and rights of subjects shall be a blot on independence and many facetted jurisdiction
and discretionary powers of the High Court. See The Judicial Review Handbook (3rd Edn)
by Michael Fordham at 361.
144. The Constitutional Court of South Africa in Fose vs. Minister of Safety & Security [1977] ZACC 6
emphasized the foregoing as follows: -
Appropriate relief will in essence be relief that is required to protect and enforce the
Constitution. Depending on the circumstances of each particular case the relief may be a
declaration of rights, an interdict, a mandamus or such other relief as may be required
to ensure that the rights enshrined in the Constitution are protected and enforced. If it is
necessary to do so, the courts may even have to fashion new remedies to secure the protection
and enforcement of these all-important rights.
145. The appropriate balance in this matter is to regularize the Audit report prepared by the Taskforce at
hand. In doing so, any further implementation of the ndings and recommendations contained in the
Audit report ought to be forestalled.
146. With such an approach, justice will be served to both the taxpayers and the County Government which
is eager to entrench proper governance structures in place.
82
Disposition
147. Deriving from the above, the following nal orders do hereby issue: -
a. A declaration hereby issues that the establishment of the Taskforce on Pending

Bills and Human Resource Audit by the Governor of the Trans Nzoia County
vide Kenya Gazette (Vol CXXIV-No.218) Notice No. 12643 which notice
was published on 21st October, 2022 contravened Articles 174(a) and (i),
226(3) and 229 of the Constitution, the Public Audit Act, the Public Finance
Management Act and Public Finance Management (County Governments)
Regulations 2015 by usurping the powers of the Auditor General and
those of the Internal Audit oce and the Audit Committee of the County
Government of Trans Nzoia County. The Taskforce and its resultant report
are, therefore, unconstitutional, null and void.
b. Given the laches on the part of the Petitioner in challenging the establishment
of the Taskforce and the advance state of implementation of the audit report of
the Taskforce by the 1st, 2nd, 3rd and 4th Respondents herein, the declaration of
unconstitutionality in (a) above is hereby suspended pending the following: -
(i) The 1st Respondent shall, within 14 days of this order,

(since the Auditor-General did not participate in this
matter) forward the Audit report prepared by the
Taskforce together with a copy of this judgment and
the decree thereof to the Auditor-General. The 1st
Respondent shall then serve all the parties herein with
the evidence of service within 7 days of service upon
the Auditor-General.
(ii) The Auditor-General shall then consider the report

and decide on whether it meets the appropriate
parameters required by the Constitution and the law.
The Auditor-General shall further consider whether
to deem and adopt the Audit report as having been
initially sanctioned by the Oce of the Auditor-
General. Further, the Auditor-General shall have the
option of rejecting the report. The decision will
be made and communicated to the 1st Respondent
within 60 days of service as directed in (i) above.
(iii) In considering the report in (ii) above, the Auditor-

General shall be at liberty to call for any documents
or information either from the 1st, 2nd, 3rd and 4th
Respondents or elsewhere as the law permits, or to
even carry out any inspection(s) at the oces of the 1st,
2nd, 3rd and 4th Respondents as to enable it make the
decision.
(iv) In the event the Auditor-General decides to adopt the

report, the Auditor-General will be at liberty to adopt
83
it as it is or to make any changes to it or to make
further or other recommendations and ndings as it
deems t. The Auditor-General shall then inform the
1st Respondent of its decision in writing as directed in
(ii) above.
(v) Once a decision to adopt the report is made and

communicated by the Auditor-General to the 1st
Respondent, then the report shall, thereafter, be dealt
with in accordance with the law.
c. In the event the Auditor-General rejects the audit report by the Taskforce in its
entirety, or if the 1st Respondent herein fails to eect service of the report and
judgment as directed, the declaration of unconstitutionality of the Taskforce
and its report in (a) above shall forthwith take eect.
d. Once the declaration of unconstitutionality of the Taskforce and its report

sets in as provided for in (c) above, the proceedings of the Taskforce and the
resultant ndings and recommendations together with any actions taken by
the 1st, 2nd, 3rd and/or 4th Respondents in the implementation of the Audit
Report shall have no force of law or at all. The same shall accordingly stand
quashed by an order of Certiorari and the state of aairs shall revert to as it were
before the establishment of the Taskforce. In that case, all the sums of monies
expended upon the Taskforce shall be made good in accordance with Article
226(5) of the Constitution.
e. Pending service as directed in (b)(i) above and the outcome of the decision by
the Auditor-General, the 1st, 2nd, 3rd and 4th Respondents and/or their agents,
representatives or assignees are hereby restrained from any further and/or
subsequent implementation of the ndings and recommendations contained
in the impugned Audit Report.
f. The parties herein remain at liberty to apply.
g. As the matter is a public interest litigation, parties shall bear their respective
costs.
Orders accordingly.
DELIVERED, DATED AND SIGNED AT KITALE THIS 19TH DAY OF SEPTEMBER, 2023.
A. C. MRIMA
JUDGE

NRB PET E323 OF 2024-DEBT-DR.MAGARE GIKENYI &amp; MATINDI VS AG-TASKFORCE PUBLIC DEBT &amp; 17 OTHERS

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NRB PET E323 OF 2024-DEBT-DR.MAGARE GIKENYI &amp; MATINDI VS AG-TASKFORCE PUBLIC DEBT &amp; 17 OTHERS

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REPUBLIC OF KENYA 1

IN HIGH COURT OF KENYA AT NAIROBI

IN THE MATTER OF: THE ILLEGAL, IRREGULAR AND UNCONSTITUTIONAL

IN THE MATTER OF: IN THE MATTER OF RULE 4, 10, 11, 13 OF THE

I DR.MAGARE GIKENYI BENJAMIN (MBChB(UoN), Mmed(Mu), FCS(ECSA)

1) THAT The president of the republic of Kenya(hereby represented by the Attorney

3) THAT further the work of auditing public debt is a constitutionally mandated

5) THAT the office of the auditor-general is an independent office pursuant to

6) THAT The Petitioners impugn the constitutional validity of the EXECUTIVE

ELIUD KARANJA MATINDI

(b) For the 2nd Petitioner, ELIUD KARANJA MATINDI –

2) Presidential Taskforce on Forensic Audit Of Public Debt

IN THE MATTER OF: THE ILLEGAL, IRREGULAR AND UNCONSTITUTIONAL

IN THE MATTER OF: IN THE MATTER OF RULE 4, 10, 11, 13 OF THE

(a) This Application be certified as extremely urgent and deserving to be

(c) Pending the hearing and determination of this Application, this

(d) THAT any other order/modification of my prayers in which this

(e) Costs be provided for.

3) THAT further the work of auditing public debt is a constitutionally mandated

4) THAT this position is further cemented in a recent Kitale High Court

5) THAT the office of the auditor-general is an independent office pursuant to

6) THAT The Petitioners impugn the constitutional validity of the EXECUTIVE

Where purported service is rendered in violation of the Constitution, it does

23) THAT It is important to maintain constitutionalism, rule of law, Law and

24) THAT in the circumstances, this radical , irrational, illegal decision

AND WHICH MOTION is grounded on the annexed affidavit of DR.MAGARE

ELIUD KARANJA MATINDI

DRAWN & FILED BY:

(b) For the 2nd Petitioner, ELIUD KARANJA MATINDI –

2) Presidential Taskforce on Forensic Audit Of Public Debt

IN THE MATTER OF: THE ILLEGAL, IRREGULAR AND UNCONSTITUTIONAL

IN THE MATTER OF: IN THE MATTER OF RULE 4, 10, 11, 13 OF THE

THE HUMBLE PETITION OF PETITIONERS DR. MAGARE GIKENYI

1) THAT the 1St petitioner, Dr.Magare Gikenyi J. Benjamin (MBChB(UoN),

4) THAT The 2nd respondent, presidential taskforce on forensic audit of public

5) The 3RD CABINET SECRETARY FOR NATIONAL TREASURY AND ECONOMIC

7) The 5TH-15Th respondents are persons appointed to the PRESIDENTIAL

(III) THE INTERESTED PARTIES

9) THAT The 1ST INTERESTED PARTY,CONTROLLER OF BUDGET a body

12) As stated in the PREAMBLE of the Constitution of Kenya, the Petitioners, in

C. THE LEGAL FOUNDATIONS OF THE PETITION INCLUDE:

33) Article 73 of the Constitution, which provides for responsibilities of leadership,

58) Article 253 of the Constitution, which incorporates the constitutional

a. promotes its purposes, values, and principles.

d. contributes to good governance.

63) On 05.07.2024, H.E., the President of the Republic, caused to be published

65) The 5TH-15 Respondents in these proceedings were constituted as members of

E. MANIFESTATION OF VIOLATIONS OR INFRINGEMENT OF OR THREATS TO

(a) In establishing the Taskforce as notified, the President violated the

(e) Further, requiring persons other than the Auditor-General to undertake

(j) Having been appointed at the whim of the President, it cannot be

(p) It is the Petitioners’ endeavor, through these proceedings, to subject H.E.

F. A. ONGOING CASES RELATED TO THE MATTERS IN DISPUTE THIS

72) YOUR PETITIONERS HUMBLY PRAY THAT THIS HONOURABLE COURT BE

a) H.E. THE PRESIDENT OF THE REPUBLIC OF KENYA, could

b) EXECUTIVE ORDER NO. 4 OF 2024, published as Kenya Gazette No.

a) DECLARATION THAT H.E. THE PRESIDENT OF THE REPUBLIC OF

b) DECLARATION THAT EXECUTIVE ORDER NO. 4 OF 2024, published

c) A declaration hereby issues that the establishment of presidential

74) UPON MAKING DECLARATIONS AS ABOVE, this Honourable Court be

(a) DECLARING as unconstitutional, null and void, EXECUTIVE ORDER

(c) Judicial review orders of CERTIORARI QUASHING Kenya Gazette No.

(e) Judicial orders of mandamus compelling the respondents to comply

(f) THAT this Honourable Court be pleased to issue a JUDICIAL REVIEW

NRB PET E323 OF 2024-DEBT-DR.MAGARE GIKENYI & MATINDI VS AG-TASKFORCE PUBLIC DEBT & 17 OTHERS

NRB PET E323 OF 2024-DEBT-DR.MAGARE GIKENYI & MATINDI VS AG-TASKFORCE PUBLIC DEBT & 17 OTHERS