The Court of Appeal has declined to issue interim orders staying the ruling by the High Court that suspended the implementation of the Finance Act 2023.
Through former Attorney General Githu Muigai, the State, on Thursday, July 20, requested the Court of Appeal to lift the conservatory orders issued by Judge Mugure Thande.
Appellate judges, Justice Mohammed Warsame, Kathurima M'Inoti and Hellen Omondi instead directed that the court will deliver a ruling on Friday, July 28.
The government wanted the conservatory orders lifted so that the Finance Act could be implemented, pending the determination of its legality by an extended bench appointed by Chief Justice Martha Koome.
On Friday, June 30, High Court Judge, Justice Mugure Thande, barred Treasury Cabinet Secretary Njuguna Ndung'u and Attorney-General Justin Muturi from implementing the Act until a case filed by Busia Senator Okiya Omtatah is determined.
While petitioning to lift the conservatory orders, Lawyer Githu Muigai argued that the matter at the High Court was handled unprocedural and that the court engaged in judicial overreach while delivering the ruling.
Further, Githu argued that the High Court violated the separation of powers between Parliament, the Judiciary and the Executive while suspending the implementation of the Finance Act.
Lawyer Kiragu Kimani, also appearing for the State, stated that the government may move to recover the tax accrued between July 1, 2023, when the Act was supposed to take effect, and the date the verdict will be issued, should Omtatah's petition be rejected.
Omtatah, while petitioning for suspension of the Act, argued that it contained amendments which affected the mandate of Senators in protecting the interests of counties. He had earlier claimed that the National Assembly failed to consult the Senate before passing the Finance Bill 2023, which President William Ruto signed into law.
However, the State countered his argument, informing the court that the National Assembly passed the Act constitutionally as a money bill that did not require the Senate's input.
Omtatah, in a rejoinder, accused the government of contempt, emphasising that it already ignored the suspension of the 16 per cent Value Added Tax (VAT) on petroleum products after it increased fuel prices on June 30, 2023. Thus filing an appeal at the Court of Appeal could be perceived as a mockery of justice.
In other developments, Chief Justice Martha Koome, on Thursday, July 18, appointed Justices David Majanja, Lawrence Mogambi and Justice Christine Meori to hear and determine the legality of the Finance Act.
However, the opposition, the Kenya Conference of Catholic Bishops (KCCB) and other activists want President Ruto to repeal the Act.
