The Court of Appeal has lifted the orders barring implementation of Finance Act 2023 pending the hearing and determination of the matter.
In a ruling delivered on Friday, July 28, Justice Mohammed Warsame said the appeal filed by Treasury Cabinet Secretary Njuguna Ndung'u has merit.
"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 July 10, 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. Costs shall abide the outcome of the appeal," read part of the ruling.
The State applied to have the High Court decision, which suspended the Finance Act, thrown out noting that it was unclear what would happen to operations in the three arms of government during the period when the Act remained suspended.
The respondents including Treasury Cabinet Secretary Njuguna Ndung'u and the Attorney General's office argued that the orders would precipitate a crisis in the government in relation to revenue mobilisation and expenditure approval.
While filing its appeal, the state argued that the country would incur irreversible damage if the conservatory orders were not suspended.
In exercising his discretion, the judge observed that the court could consider suspending specific provisions whose implementation were likely to have an irreversible effect but not the entire Act.
"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," the judge ruled.
"In conclusion, we are persuaded that the applicants have satisfied the twin principles for the grant of the orders sought, and that, public interest tilts in favour of setting aside the conservatory orders by the trial Judge."
Justice Warsame nullified the ruling delivered by High Court Judge Mugure Thande which extended the Finance Act's suspension. While making the ruling, Justice Thande argued that Kenyans would be unfairly subjected to taxes.
The case will now be determined by a three-judge bench consisting of David Majanja, Lawrence Mogambi and Christine Meoli.
