NAIROBI, Kenya, Jul 10 – The High Court has declined to lift conservatory orders against the Finance Act, 2023 issued on June 30 in a suit filed by Busia senator Okiya Omtatah and Human Rights Groups
In a ruling delivered Monday Justice Mugure Thande directed the file to be sent to the Chief Justice Martha Koome who will set up a three-judge bench to hear the case.
Justice Thande stated weighty matters have been raised in the petition adding that the court is well aware of the public interest generated by the Finance act and Finance Bill 2023.
She added that the State led by Attorney General Justin Muturi had not demonstrated to the court’s satisfaction the grounds to warrant the setting aside of the earlier conservatory orders.
“The applications dated 30th of June 2023 and 1st of July 2023 are hereby dismissed the application dated 29th of June 2023 is hereby allowed, pursuant to article 165 (4)this matter is certified as raising a substantial question of law and the file is hereby transmitted to the Chief Justice for assignment of a bench of not less than three judges to hear and determine the petition,” Justice Thande ruled adding that public will suffer prejudice if the conservatory order is lifted.
Thande has extended interim orders halting the government from collecting taxes outlined in the Finance Act, 2023.
Omtatah who is behind the petition said the law is unconstitutional adding that its implementation would subject Kenyas to great suffering.
President William Ruto’s government pushed the law through parliament despite stiff opposition, saying extra revenue measures were needed to help deal with growing debt repayments, and fund job-creating initiatives.
Doubling the fuel tax to 16 percent and the introduction a 1.5 percent housing levy for all employees is among a raft of taxation measures contained in the Finance Act 2023.
President Ruto signed the Bill after the National Assembly adopted his tax proposals despite concerns from civil society and the Opposition Azimio coalition.
Azimio leader Raila Odinga has called for protests over the new Act accusing President Ruto of ignoring the plight of Kenyans.
In the application before the court, petitioners contested the passage of twenty-two sections of the Act “which were not in the Bill but were introduced on the floor of the National Assembly.”
They further challenged adoption of another 40 provisions without the input of the Senate arguing the said tax proposals required an endorsement by the Senate.
The petitioners also challenged public participation in the law-making process as being inadequate.
On July 5, the Government argued that it is staring at a financial crisis after the High Court temporarily suspended the implementation of the Finance Act which would have facilitated the collection of taxes to fund the 3.6 trillion budget.
Githu Muigai who is representing Attorney General told the High Court that the government will soon be unable to pay international commitments as well as pay salaries of government employees.
He accused Senator Omtata of misleading the court into believing there was no consequence in extending the suspension until the petition is determined.
However, Rarieda MP Otiende Amollo rebutted by stating that the government can still collect taxes through use of Finance Act 2022 which does not include contentious provisions such as the 16 per cent VAT on Fuel and Housing Levy.
