State lawyer Kiragu Kimani warned that the government would move to recover the taxes lost beginning July 1, 2023, should Busia Senator Okiya Omtatah's petition be rejected.
The advocate, on July 21, argued that the decision would aid the government to recoup the funds needed to achieve Kenya Kwanza's Ksh2.57 trillion revenue collection target.
This debate was reignited on Thursday, July 28, after the Court of Appeal lifted orders barring the implementation of the Finance Act 2023, pending the hearing and determination of the appeal.
Constitutional lawyer, Bobby Mkangi, however, questioned the practicality of the aspect and wondered the means the government would use to quantify the taxes lost.
"I don't think that is in order because the failure to collect the taxes is through the court's system, it is they that put a moratorium as to when the Finance Act should become effective. It can only become effective if the courts allow it, that's when it becomes law."
"In my opinion they cannot do that as it would also mean the fuel we have been buying at 16 per cent when this order was in place, so should Kenyans apply to recover?
"If coming into effect of the law is through the courts, the law doesn't become effective until a ruling is given by court," Mkangi told Kenyans.co.ke
Dr. Brian Mutie, a governance, law and democracy expert, added that the law is not applied backward hence the argument lacked basis. He pointed out that the government did not have the framework to constitute a system to backdate the taxes.
"That is what is called the principal of retrospective application of law. The law doesn't look behind or backward. It has no practical basis from a legal perspective neither it is applicable since you can't quantify the amount you have lost."
"This is just a blind legal argument which has no basis. It is termed 'legal activism' where someone is trying to drum up some legal aspects for their self interests," he stated.
The court's decision to delay the conservatory orders of the Finance Act 2023 pending the determination of the case, was a blow to the State as it deters the government's efforts to collect revenues.
The case will proceed to the High Court where Justices David Majanja, Lawrence Mogambi and Justice Christine Meori will determine the legality of the Act.
