Omtatah wants CS Ndung'u barred from withdrawing Sh1.8trn

Busia Senator Okiya Omtatah. The Senator has asked the court to suspend the implementation of the Appropriation Act 2024. [File, Standard]

A case has been filed in court challenging a decision by the two Speakers of Parliament to disregard senators' input in the Budget Appropriation Bill 2024.

The Bill was assented into law by President William Ruto on Friday.

In a brief ruling, Justice Lawrence Mugambi of the Milimani Constitutional and Human Rights High Court found that the lawsuit by Busia Senator Okiya Omtatah seeking to suspend the Appropriation Act 2024 needs to be heard expeditiously.

He fixed the hearing for July 11.

The judge also gave National Assembly Speaker Moses Wetang'ula and Senate Speaker Amason Kingi three days to file their responses to the lawsuit filed by Omtatah and human rights advocate Eliud Karanja Matindi.

On Friday, Omtatah and Matindi moved to court under a certificate of urgency seeking orders to suspend the Appropriation Act 2024.

They also want National Treasury Cabinet Secretary Njuguna Ndung'u barred from withdrawing Sh1.8 trillion from the Consolidated Fund for the funding of various government projects and 15 constitutional commissions and independent offices until their case is heard and determined.

"Where the Appropriation Bill, 2024, has been assented to but was considered, debated, and approved without involving the Senate, the court be pleased to suspend the Appropriation Act, 2024 pending the hearing and determination of the application and the Petition," the petitioners seek.

They argue that the Appropriation Act 2024 is unconstitutional, null, and void since the Bill was not tabled at the Senate for consideration before it was passed and forwarded to the President.

"The annual Appropriation Act which is intended to guide appropriations for monies in the 2024/2025 financial year has unconstitutionally been enacted by the National Assembly alone without the involvement of the Senate as required in law," the petitioners argue.

According to Omtatah and Matindi, the exclusion of the Senate undermines the constitutional principles of devolution and bicameralism, which are designed to ensure inclusive and comprehensive legislative processes.

"By bypassing the Senate, the National Assembly disregards the critical role the Senate plays in representing the interests of counties and their governments and providing an additional layer of scrutiny to national financial legislation," they say.  

They are also urging the court to bar the government through Attorney General Justin Muturi from implementing the Appropriation Act, 2024 since it is illegal and should be quashed.

As they pleaded with the High Court to certify the matter as urgent, the Senator and Matindi argue that Kenyans stand to suffer immensely.

"Unless the application is urgently heard and determined, the applicants(Omtatah and Matindi) and the people of Kenya will suffer great loss and damage as the impugned excise duties will continue to be imposed on Kenyans," the court papers state.

According to Omtatah,  Speaker of the National Assembly should be compelled to transmit the Financial Year 2024/2025 Budget Estimates and the Appropriation Act, 2024, to the Speaker of the Senate for consideration, debate, and approval by that House.

"The failure to subject the Appropriation Bill, 2024, to public participation was fatal and voided the resultant Appropriation Act, 2024. Sections 39(1) and 39A(3) of the Public Finance Management Act are unconstitutional and, therefore, invalid, null, and void," the petitioners state.

The lawmaker faults Wetang'ula and Kingi for failure to submit the Appropriation Act to the Senate adding that they violated Articles 96 and 110 of the Constitution which expressly require the Senators to be involved in the consideration, debate and approval of Bills concerning counties or county government.

"The Appropriation Bill under Article 221(6) is a Bill concerning counties or county governments to the extent that it appropriates expenditure from the Equalisation Fund, funds the Senate which protects the interests of counties and their governments, and funds the Chapter 15 entities whose work encompasses counties," Omtatah says.