The Court of Appeal on Wednesday ruled that the Finance Act, 2023 was unconstitutional following a petition filed by Busia Senator Okiya Omtatah and others.
Court of Appeal Judges John Mativo, Agnes Murgor and Kathurima M'Inoti affirmed the High Court finding that sections 76 and 78 of the Finance Act 2023 amended section 7 of the Kenya Road Act 199 are unconstitutional, null and void.
"Having found that the process leading to the enactment of the Finance Act 2023 was fundamentally flawed and in violation of the Constitution, sections 30 to 38, 52 to 63 and 23 to 59 of the Finance Act 2023, stand equally vitiated and there unconstitutional," read part of the court ruling.
The case had been filed by the Senator with over 50 respondents listed including Parliament and the Speaker of the National Assembly.
Nonetheless, in the ruling, the judges denied a prayer from the respondents seeking to have the government refund taxes collected under several sections of the Act.
Per the judges, this was denied because it was not pleaded in the petition before the High Court and therefore it was declared to have been before the court improperly.
"We uphold the finding by the High Court that concurrence of both houses in the enactment of the Finance Act, 2023 was not a requirement under Article 114," read part of the ruling.
Furthermore, the court also ruled that sections 18, 21, 23, 24, 26, 32, 34, 38, 44, 47, 47, 69, 72, 79, 80, 81, 82, 83, 85, 100, 101, and 102 were unconstitutional, null and void for not having been subjected to fresh public participation and having been enacted in total violation of the constitutionally laid legislative path.
Judges also declared that the enactment of the act violated Articles 220 (1) and 221 of the Constitution as read with sections 37, 39A and 40 of the PFMA which prescribes the budget-making process. This rendered the ensuing finance act fundamentally flawed and therefore void and consequently unconstitutional.
The bill was presented before the National Assembly on June 14, 2023, and was passed on June 23 of the same year. It introduced several controversial taxes such as the housing levy which was termed as unconstitutional.
While commenting after the court ruling Senator Omtatah emphasised that the three-judge bench invalidated the Act which was largely opposed by Kenyans.
"The Court appeal agrees with our petition and invalidates the entire FY 2023/25 finance bill in its entirety," he stated.
