Relief for Ruto as court unlocks Finance Act 2023

Chief Justice Martha Koome chats with President William Ruto after the swearing-in of twenty Judges of the High Court and conferment of the Rank of Senior Counsel at State House, Nairobi on May 14, 2024. [PCS]

The Supreme Court has granted the Kenya Kwanza government a major reprieve by temporarily allowing it to collect taxes provided for in the Finance Act 2023.

By suspending the Court of Appeal’s judgment, the highest court in the land gave the government a green light to use the old law after the Finance Act 2024 was scrapped following protests.

Chief Justice Martha Koome, her deputy Philomena Mwilu, Justices Mohammed Ibrahim, Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola and William Ouko unanimously agreed that the lower court's orders created uncertainty about revenue collection.

At the same time, they were of the view that it would be a significant loss for the government and counties if they had no money to run their affairs.

“Coupled with the far-reaching implications of the declaration of the entire Finance Act, 2023 as unconstitutional, we are persuaded that the consolidated appeal may be rendered useless. Besides, prima facie, we are not convinced that the consequences of such a declaration would be reversible should the consolidated appeal be successful,” the bench headed by Justice Koome ruled.

The application was filed by the National Treasury Cabinet Secretary, Attorney General, National Assembly, Speaker of the National Assembly, and the Kenya Revenue Authority.

They expressed dissatisfaction with the Court of Appeal judgment because it made it impossible for Parliament to enact laws. The Supreme Court heard that the requirement to have Parliament subject amendments to public participation had made the process more cumbersome and uncertain.

The government argued that unless the Supreme Court intervened, it would be forced to rely on the Finance Act 2022 for revenue collection.

It asserted that at least Sh213 Billion would be lost and could not be recovered if the court did not intervene.

“It would also require the government to update all its online platforms, revenue collection systems, and software to reflect the relevant tax rates, tax brackets, and tax treatment of various items to the legal regime that existed in 2022, which will take time and calls for engagement of various software and platform providers,” the court heard.

On the other hand, those opposed to the Act, led by Busia Senator Okiya Omtatah, urged the court to dismiss the application. They argued if the government’s case is unsuccessful, Kenyans will be subjected to unconstitutional taxes for an even longer period since there is no Finance Act 2024.

They asserted that Justices Kathurima M’inoti, Agnes Murgor, and John Mativo had indicted the National Assembly for passing the Act for a second reading without then Treasury CS Njuguna Ndung’u presenting the budget proposal.

According to the judges, the public deserves to be subjected to legal processes. They were of the view that the Finance Act 2023 had no legal foundation to stand on and, therefore, was unconstitutional.

The case stemmed from the High Court. High Court Judges David Majanja (deceased), Lawrence Mugambi, and Christine Meoli had found that the Finance Act 2023 was above board but invalidated the Housing Levy.

Aggrieved, the government moved to the Court of Appeal. However, the appeal was a poisoned chalice for the National Assembly and Wetang’ula, who were challenging the High Court’s verdict on, among other things, the Housing Levy. A total of six appeals were filed, with Okiya seeking declarations that the Act is unconstitutional.

Justices M’inoti, Murgor, and Mativo also found that 27 sections of the same Act introduced after public participation were unconstitutional and violated the house’s standing orders.

In the case, the court heard that those who opposed the Finance Act 2023 were never given a reason why Members of Parliament never considered their voices.