Court extends orders barring government from implementing Finance Act 2023:

Finance Bill

President William Ruto signing the Finance Bill, 2023 to law at State House, Nairobi on June 26. 

Photo credit: File I Nation Media Group

The government will wait longer before it can implement the Finance Act,2023.

This is after Milimani High court Judge Mugure Thande extended interim orders halting the government's move to introduce new taxe rules.

Justice Thande extended the interim orders she granted on June 30, 2023 suspending the implementation of the new tax law until she delivers a substantive ruling on the suspension of the tax law on July 10, 2023.

After lengthy submissions running for seven hours from the parties involved in the legal dispute, the judge further stayed the implementation of the Finance Act 2023 that was ascended to by President William Ruto on June 26, 2023.

On the hiking of fuel prices illegally, Justice Thande did not summon the EPRA Managing Director Daniel Kiptoo Bargoria.

However, Justice Thande directed the Attorney General, Cabinet Secretary Treasury Prof Njuguna Ndung'u, the Speakers of the two houses Moses Wetangula and Amoson Kingi put in their responses by close of business July 7, in response to the contempt case filed by Busia Senator Okiya Omutatah and six others.

"The application for contempt of court was not coming for directions today (July 5) and l hereby direct the responses be filed by close of business on July 7 and directions will be given thereafter on a date to be advised," the judge ruled.

In the lengthy submission on Wednesday, Busia Senator Okiya Omtatah, lawyers Otiende Amollo and Daniel Maanzo, urged the court to suspend the implementation of the Finance Act until the pending case is heard and determined saying “it will subject Kenyans to slavery and servitude.” 

Mr Omutatah told court that the Finance Bill that was approved by Members of Parliament without the concurrence of the senators is illegal. 

Mr Omtatah faulted the entire Finance Act 2023 terming it unconstitutional saying it only talks about expenditure without stating how revenue will be raised to cater for the appropriation. 

While urging the court to extend the interim orders, he said if the government is allowed to implement the new tax law, it will subject the taxpayer to great suffering.

Mr Omtatah added that Parliament erred by raising fuel prices by 16 percent without giving an estimation as to how much money it intends to collect and for what purpose.

"You cannot tax Kenyans without telling them how much money you intend to raise," he stated 

He added that the power to tax people is anchored on the law which requires full participation of the two Houses.

On his part, Mr Amollo said that the entire Act is procedurally unconstitutional.

The lawyer faulted the Speaker of the National Assembly Moses Wetan'gula for allowing the introduction of 22 new clauses at the floor of the House without public participation.

"To bring in a quarter of the entire of the 84 clauses through an addendum is essentially to bring in a new bill which members of the public did not participate in, " Mr Amollo disclosed.

He said the purpose of the Finance Act is for amending existing laws for various taxes and collection of duties.

Mr Amollo stated that the government draws that mandate of amending the tax laws from Article 203 of the Constitution.

"There will be no loss suffered in stopping the implementation of the impugned Finance Act 2023 since tax collection is continuing under the 2022 Finance Act, " the lawyer stated.

He urged the court not to allow it to be 'sold fear' by the other Arms of the Government while violating the Kenyans rights to taxation.

Mr Amollo further told the court that as of now, the Finance Act continues to run and that the order does not stop payment of bills and salaries as alleged by the State.

He submitted that the finance Act is merely seeking Sh211 billion additional taxes and it does not suspend the collection of the Sh3.4 trillion budget.

He stated that the AG is misleading the court as the orders suspending the implementation of the Finance Act had not halted operations of the government at all.

"The idea of scare-mongering this court by should be ignored," Mr Amollo urged the judge.

He has also claimed that Treasury and EPRA have disobeyed the court order and gone ahead to implement some laws in the said Finance Act.

The request to suspend the Finance Act further was vehemently opposed by the Attorney General Justin Muturi who stated that the orders will bring a budgetary crisis to the country.

Lawyer Issa Mansur for the Senate said the law allows the two speakers to thrash out issues they think do not require concurrence.

Mr Mansur therefore urged the court to decline the request to summon Senate Speaker Amson Kingi for cross-examination over his decision to advice Wetang’ula not to forward the Finance Bill for concurrence before it was ascended to.

Justice Thande further allowed other four interested parties to join in the suit. She ordered they file arguments by the close of business July 7, 2023.

Further directions will be given on July 10, 2023.