Omtatah in court over new taxes on phones, SIM cards

Monday, July 25th, 2022 01:02 | By
Activist Okiya Omtatah makes a presentation during a past appearance in count. Photo/PD/Charles mathaai
Activist Okiya Omtatah makes a presentation during a past appearance in count. Photo/PD/Charles mathaai

Activist Okiya Omtatah has moved to court to challenge the legality of new taxes imposed on mobile phones and SIM cards as part of Finance Act, 2022.

Under a certificate of urgency, Omtatah has asked the High Court to issue orders directing Kenya Revenue Authority, Communications Authority of Kenya, Safaricom, Airtel and Telkom to suspend further implementation of the imposition of excise duties for mobile phones and SIM cards after the Finance Act, 2022 took effect on July 1. He has termed the move as illegal and unconstitutional.

“The court be pleased to issue an interim order suspending the imposition of excise duty at the rate of 10 per cent on imported cellular phones and Sh50 on SIM cards under the Finance Act, 2022 pending hearing and determination of the petition,” activist seeks.

President Uhuru Kenyatta assented to the bill on June 21.

Omtatah is also a Senate candidate for Busia county in the next month’s elections.

“This matter is extremely urgent given that on June 21 President Uhuru Kenyatta assented to the Finance Act, 2022, which has unlawfully and unconstitutionally sneaked into law and imposed on innocent Kenyans punitive taxes, which Parliament irregularly inserted into the bill,” Omtatah argues.

The activist says the imposition of the impugned new excise duty has no basis in law.

In court papers, Omtatah says he is aggrieved that the impugned excise duties were imposed without public participation, as traders and consumers of imported SIM cards and mobile phones were condemned unheard.

Public participation

“The impugned excise duties are unconstitutional and unlawful, and it is therefore invalid, null and void because it was imposed by Parliament without the concurrence of the Cabinet Secretary for Finance and without public participation,” Omtatah says.

Activist contends that if the impugned duties are not suspended then Kenyans will suffer great loss. “Application faults the impugned excise duty as being dangerous, catastrophic, irregular, unreasonable, illegitimate, unlawful, and, therefore, unconstitutional, null and void. The petitioner is inviting the court to intervene, suspend and then quash the impugned taxes,” Omtatah states in court papers.

He posits that the National Assembly, who he has sued together with Attorney General Kihara Kariuki, must perform its functions in accordance with Article 93(2) of the Constitution. “Court is enjoined to stand up to this impunity, lawlessness and cascading corruption in the affairs of the National Assembly by suspending and later quashing the impugned duties, “ Omtatah states.

According to Omtatah, the Finance Bill, 2022 (National Assembly Bills No. 22 of 2022) was published in the Kenya Gazette Supplement No. 67 on April 8 and read a First Time on April 12.

It was then committed to the Departmental Committee on Finance and National Planning for consideration without public participation and reporting to the House pursuant to National Assembly Standing Order 127.

The activist avers that he reasonably suspects that the decision to sneak in the Bill was deliberately made to hide the tax from being noticed by the public.

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