Faith Odhiambo Pokes Holes in Supreme Court Ruling on Finance Act 2023

Law Society of Kenya (LSK) President Faith Odhiambo has questioned the Supreme Court’s October 29 ruling that reinstated the Finance Act 2023.

Besides upholding the impugned provisions of the Finance Act 2023 as constitutional, the Court went to great lengths to demonstrate why, in its view, the issues surrounding public participation in the Act were not potent.

In a statement reacting to the ruling, Faith Odhiambo noted that the Supreme Court’s decision on the Finance Act 2023 came when Kenyans continued to grapple with inconsistencies and inadequacies of Public Participation, especially by Parliament.

She went on to express her dissent in the apex court’s ruling, maintaining that the public interest is of paramount importance in the legislation process. 

“We respectfully disagree with the court’s approach. The expediency of the legislative process cannot be said to override legitimate expectations and public interest, nor can Parliament be exempt from the need to rationalize its decision under the guise that the legislative process does not constitute administrative action,” Faith’s statement read in part.

Also Read: Supreme Court Delivers Ruling on Finance Act 2023

LSK Welcomes Supreme Court Recommendation

On the other hand, the LSK President welcomed the court’s recommendation that seeks to enact the statute to guide public participation.

“Nevertheless, we welcome the Court’s recommendation for the enactment of the statute to guide public participation,” she stated.

Further, Faith reiterated, “However, we hope that should the Court be invited to make future considerations on the subject of Public Participation, they will provide more elaborate and purposive guidance on the modalities.”

Also Read: Relief for Ruto as Supreme Court Gives Way Forward on Finance Act 2023

The Supreme Court Orders

Following the ruling of the Court of Appeal declaring the Finance Act 2023 unconstitutional, the Supreme Court overturned the ruling on October 29. Additionally, it issued various orders regarding the petitions.

Among the key findings of the Supreme Court was one dismissing a preliminary objection on the Supreme Court’s jurisdiction.

Despite setting aside the Court of Appeal’s findings declaring the entire Finance Act, 2023, unconstitutional, the judges upheld the Appellate Court’s finding that the question relating to Section 84 (Affordable Housing Levy) introduced by the Finance Act, 2023 before the Court of Appeal was moot.

In addition, the Supreme Court found that Sections 76 and 78 of the Act amending Section 7 of the Kenya Roads Act, 1999; Section 87 of the Act amending Section 28 of the Unclaimed Financial Assets Act, 2011 are unconstitutional as they were neither incidental to nor directly connected to a money Bill.

Each party, according to the ruling, was to bear the costs of the consolidated appeal and cross-appeals.

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