Senate, National Assembly in legal battle over budget

Senator Okiya Omtatah

Senator Okiya Omtatah at the Supreme Court on September 2, 2022. He has filed a petition at the High Court in Nairobi challenging the constitutionality of the 2022/23 budget. 

Photo credit: File | Nation Media Group

The two Houses of Parliament are embroiled in a legal tussle after Busia Senator Okiya Omtatah sued the National Assembly over its failure to involve the Senate in the passage of the 2022/23 budget.

The petition dated December 30, 2022, filed at the High Court in Nairobi is challenging the constitutionality of the 2022/23 budget that is currently financing government services on grounds that the Senate was not involved in its passage.

The matter, if successful, will potentially plunge the country into a financial crisis.
The petition also accuses the National Assembly of violating the Constitution as it questions the constitutionality of the Appropriations Act 2022 and the Finance Act 2022 that Senator Omtatah says were enacted without the input of the Senate.

The Busia senator urged the court to treat the matter as “extremely urgent” and lists the National Assembly, Speaker of the National Assembly and Attorney-General as the first, second and third respondents respectively.
The Senate, Speaker of the Senate and Katiba Institute are listed in the case as the first, second and third interested parties respectively.

If the High Court grants the orders sought, it will be the first test for President William Ruto as it will grind to a halt the operations of the national government.

The Busia senator filed the petition with his eyes on the 2023/24 budget-making process that officially starts on February 15, 2023, as per the Public Finance Management (PFM) Act.


“This matter is extremely urgent because, with the national budget-making cycle around the corner, there is an imminent cascading threat that the National Assembly will, yet again, violate the Constitution by excluding the Senate from the process of approving and operationalising the national budget for 2023/24 financial year,” Mr Omtatah’s petition reads.

Mr Omtatah pleaded with the court that unless it intervenes to stop the “imminent violations” of the Constitution, the Senate will be totally excluded from the process of approving the estimates, “yet the estimates clearly concern counties”.

High Court Judge Hedwig Ong’udi certified the matter urgent and directed that all parties in the case be served.
The matter is coming up on February 1, 2023, for confirmation and further directions.
Already the National Assembly has raised preliminary objections on the matter, especially the status of a senator as a public litigant.

The National Assembly wants the court to determine whether it’s in order for a senator to go to court as a public litigant on a matter he/she can “freely” legislate in the House as provided for in the Constitution.

The National Assembly is also reading mischief in the case, noting that among the orders sought in the petition were determined by the courts up to the level of the Court of Appeal “without any further appeal”.

The National Assembly cites court rulings that determined the Division of Revenue Bill (DoRB) be considered by the two Houses of Parliament.

The enactment of the Finance Act and Appropriations Act were determined as the exclusive business of the National Assembly.

By February 15, 2023, the National Treasury is required to have submitted the Budget Policy Statement (BPS) accompanied by the Medium Term Debt Management Strategy (MTDMS) paper, in the National Assembly.

The two documents are required to be considered and approved within two weeks as per the PFM Act.
The Finance Act and Appropriations Act are enacted annually to impose taxes and to authorise the national government to spend the funds as appropriated by the National Assembly respectively.