Busia Senator Omtatah could upset international lenders and Kenya’s political elite in his illegal debt case that holds serious consequences for the parties involved.
Legal analysts observe that Omtatah’s petition is consequences-laden because of the prayers the human rights activist is seeking. He wants the burden of loans that did not benefit Kenyans to be carried by those who made the borrowing and not the citizens.
Omtatah is basing his key argument in the case on the doctrine of odious debt. It was formalised by Russian legal scholar Alexander Nahum Sack in 1927. The doctrine holds that debts incurred by ruling regimes should not bind their country’s citizenry. These are not legitimate obligations of the state, the theory goes, but personal liabilities of the rulers who incurred them without the consent of the people and not for their benefit, often with the complicity of creditors.
The activist’s motivation comes from the fact that his arguments have been advanced elsewhere before and succeed.
After the Spanish-American War of 1898, the United States repudiated Cuba’s debts to Spain because the funds had been used to suppress the Cuban people. In 1919, in the aftermath of World War I, the Reparation Commission refused to burden newly independent Poland with German and Prussian debts incurred to colonise it. In 1923, US Chief Justice William Howard Taft, sitting as arbitrator, rejected the Royal Bank of Canada’s claims against Costa Rica for loans extended to the dictator Federico Tinoco.
The doctrine is a perpetual threat to those who get into bed with despots. After the Gulf War, Paris Club creditors forgave 80 per cent of Saddam Hussein’s debts rather than risk an odious-debt arbitration that would have exposed their financing of his regime.
Today, the doctrine looms large over Kenya. In June 2026, over the government’s strong objections, a three-judge High Court bench in Nairobi greenlit a full hearing on the legality of Kenya’s public debt.
The petition, filed in April 2025 by Omtatah and eight co-petitioners, invokes the doctrine of odious debts in challenging a decade of borrowing under the administrations of former president Uhuru Kenyatta and current President William Ruto. It specifically targets a Eurobond debt totalling about US$7.1 billion as unconstitutional and unlawful.
The petitioners claim that less than 30 per cent of the borrowing received proper parliamentary approval. The remainder was allegedly incurred outside the budgets approved by Parliament, never appeared in official appropriation laws, and was not linked to identifiable public development projects. Instead, funds were allegedly deposited into offshore accounts, in violation of constitutional public-finance provisions and the Public Finance Management Act.
The petitioners seek declarations that portions of this debt are unconstitutional and odious. Kenyan citizens, they contend, should not be responsible for repaying loans they neither authorised nor benefited from. They further seek personal liability for former president Kenyatta and other officials.
In dismissing the government’s attempts to strike down the case, the court signalled that a sea change in debt accountability may be underway. In a dramatic twist, the Central Bank of Kenya, a respondent in the case, has joined the petitioners, arguing in court filings that the petition “raises contested substantial issues of undoubted public importance” and that “the weight, sensitivity, and public interest surrounding the Petition call for collective judicial thought to establish enduring jurisprudence on the delicate constitutional questions at stake.”
Legal analysts and public-interest practitioners following the matter describe the petition as a game-changer. One Nairobi law firm wrote that the High Court is “seized of a petition that could dramatically redefine the contours of fiscal accountability and sovereign debt jurisprudence in the region,” calling it “a critical inflexion point in the evolution of Kenya’s jurisprudence on constitutional law.”
Outside Kenya, the African Sovereign Debt Justice Network noted that the petition’s outcome “carries the potential to establish a crucial precedent regarding the judicial enforcement of the ‘odious debt’ doctrine, potentially reshaping transparency and accountability in borrowing.” A separate analysis in This is Africa observed that the case “carries the potential to produce the first African judicial precedent on the enforceability of the odious debt doctrine.”
Constitutional lawyer Willis Otieno has declared that Kenya must confront what he describes as odious and illegal public debt, arguing that citizens should not be forced to repay loans that did not serve the public interest.
Otieno framed the issue as both an economic and constitutional crisis. He argued that continued repayment of questionable debt has shifted the tax burden onto ordinary Kenyans while delivering little measurable improvement in public services. According to him, rising taxation tied to debt servicing has weakened household incomes and slowed economic opportunity.
“A nation cannot build prosperity while trapped in a cycle of illegitimate financial obligations. The debt acquired without transparency, public participation, or demonstrable benefit should not automatically bind future generations. Kenya must draw a legal and moral line between legitimate development financing and borrowing that enriched a few at the expense of the many.”
Critics of this approach warn that rejecting debt could damage Kenya’s reputation in international markets. However, Otieno argues that accountability strengthens credibility rather than undermining it. He argues that investors ultimately prefer countries with strong governance systems and clear legal standards over those that conceal financial irregularities.
Kenya’s case demands an examination of whether specific borrowings complied with the Constitution and whether the public received any corresponding benefit. If the High Court ultimately finds the borrowings fail that test, the implications will stretch far beyond Nairobi. Creditors who lent without insisting on parliamentary approval or transparent project linkage may discover that the “sovereign” they financed was, in important respects, acting outside the law that gives sovereignty its legitimacy.
