The Court of Appeal on Friday, July 28 lifted the order suspending the implementation of Finance Act 2023 until the appeal is heard and determined.
Justices Mohammed Warsame, Kathurima Minoti and Hellen Omondi ruled that the appeal filed by Treasury Cabinet Secretary Prof Njuguna Ndung’u has merit.
“We are persuaded that the applicants have satisfied the twin principles for the grant of the orders sought, and that public interest tilts in favor of setting aside the conservatory orders by the trial Judge.
The upshot of our decision is that the application has merit and the same is allowed as prayed with the effect that the order made on 10th July 2023 suspending the Finance Act 2023, and the order prohibiting the implementation of the Finance Act 2023, be and is hereby lifted pending the hearing and determination of the appeal.
While delivering the ruling, the judges said they were mindful of peculiar and unique circumstances of the Finance Act 2023.
“First, tax is a continuous and annual mechanism, and the members of the public can get a rebate for overpaid taxes and levies when making subsequent tax payments.
Secondly, since the petitions challenge both the entire Act and the specific provisions, the court can consider suspending the specific provisions whose implementation has an irreversible effect and cannot be refunded. This is in contradistinction with a blanket suspension of the Act,” read part of the judgement.
Thirdly, the judges noted, “the Appropriation Act which was enacted on the backdrop of the Finance Act is in place and is not under constitutional challenge.
Lastly, had the trial Judge considered the substantial and irreversible public interest in this matter, the court would have been hesitant to suspend the whole Act.”
High Court Orders
The High Court on July 10 extended the suspension barring the implementation of the Finance Act 2023.
Further, she ruled that if the Act is implemented, some Kenyans will unfairly be subjected to taxes.
“The petitioners have proved that they have a prima facie case there’s merit in granting conservatory orders,” justice Thande ruled.
In addition, the judge said the government failed to provide sufficient reasons to warrant lifting the orders.
The High Court also asked Chief Justice Martha Koome to appoint judges to hear and determine the case.
Finance Act 3 Judge Bench
Chief Justice Martha Koome named a three-judge bench to preside over the Finance Act 2023 petition.
The CJ picked Justice David Majanja, Justice Lawrence Mogambi and Justice Christine Meori.
The judges were tasked to set a date for the hearing the matter, which will shape President William Ruto’s dream to collect more revenue to finance his Ksh.3.6 trillion budget for the current financial year.