Court to rule on Finance Act today

Tuesday, November 28th, 2023 08:30 | By
Three High Court judges David Majanja (presiding), Christine Meoli and Lawrence Mugambi are expected to make a ruling on whether the Finance Act was enacted properly.
Three High Court judges David Majanja (presiding), Christine Meoli and Lawrence Mugambi are expected to make a ruling on whether the Finance Act was enacted properly. PHOTO/Print

Kenyans will this morning know whether they will continue paying the high taxes imposed on them by President William Ruto’s administration through the Finance Act 2023, the law which legalises the Sh3.6 trillion budget.

Three High Court judges; Justices David Majanja (presiding) Christine Meoli and Lawrence Mugambi are expected to make a determination on whether the Finance Act was enacted properly or illegally.

The ruling has at least three possible outcomes: It can quash the entire Act or some sections of it, or it will open a new door for another round of court battles depending on who will feel aggrieved by the ruling. It will also be a major litmus test on the relationship between the Judiciary and the Executive.

If the judges declare the entire Act null, void and unconstitutional, the government will have to go back to the drawing board to enact new tax laws if it is to continue financing its budget.

The bench will have the difficult task of making a ruling on constitutional issues in the lawsuit lodged by Busia senator Okiya Omtatah, the Azimio la Umoja Coalition and the Law Society of Kenya among others.

The petitioners approached the court to have the new law declared unconstitutional arguing that the Finance Act 2023 was illegal because the Bill did not pass through the senate as envisioned by the law. They argued that there was no concurrence of both Speakers of the National Assembly and Senate on matters relating to counties.

According to the lawmaker, some laws were sneaked into the document before President Ruto assented to the Bill on June 26.

On its part Raila Odinga-led coalition Azimio La Umoja through lawyer Paul Mwangi wants the entire Finance Act declared illegal arguing since the National Assembly failed to consult Senate.

Azimio and Omtatah argue that new provisions were introduced on the floor of the House without being subjected to public participation as required by law.

The petitioners through their counsel’s Otiende Amollo, Okong’o Omogeni, Daniel Maanzo and Omtatah argue that the introduction of the Housing Levy; that is in the Finance Act does not exist in law – as it purports to give powers to Kenya Revenue Authority to collect deductions – which is unconstitutional.

Appropriation Act

They submitted that introduction of any law which touches on counties must involve the Senate.

“Any bill touching on the bill of rights must be subjected to consideration by both houses. The Appropriation Act was not subjected to the Senate so it should be null and void. The finance bill as published by the National Assembly was a bill that needed the input of the senate,” Omatatah said

The court heard that 22 new provisions out of 84 were introduced in the house without public participation. They urged the judges to find and hold that the Finance Act 2023 is null and void.

 But Attorney general Justine Muturi strongly defended the Finance Act 2023 which nine petitioners want the court to declare it unconstitutional.

The AG through the solicitor general Shadrack Mose, professor Githu Muigai, Mahat Somane and Kiragu Kimani told the three -judge bench that the Finance Bill was properly passed by parliament after going through the required stages.

While seeking to have the case dismissed, the solicitor general informed the court the housing levy was properly discussed within the committees of parliament before the bill was taken to the full house for debate.

The AG said the housing levy was introduced by the executive with legitimate expectation that it will help most workers in the country.

The court was further told that contrary to what the petitioners have submitted to the judges, that there was no public participations there is sufficient evidence that stakeholders were invited to participate in the making of finance bill.

The court further heard that the Finance Act is already in place and the government is collecting taxes to finance its budgetary projects that run from education, health, water and sanitation and the improvement of public infrastructure.

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