Omtatah Goes To Supreme Court Over Finance Act 2023

Busia senator, Okiya Omtatah on Sunday, July 30 declared his intention to challenge the Court of Appeal's ruling which lifted conservatory orders barring the implementation of the Finance Act 2023, at the Supreme Court of Kenya.

In a notice of appeal filed by Omtatah and six other petitioners, the activist wants the highest court in the country to quash a ruling made by Justice Mohammed Warsame on Friday, July 28 that allowed the Finance Act to be implemented, pending the hearing and determination of the appeal. 

Omatath and his co-petitioners in their notice added that they intend to appeal the ruling rendered by Court of Appeal Judges Warsame, Kathurima M'Inoti and Hellen Omondi that allowed the National Treasury's plan to raise more taxes to implement the Ksh3.6 trillion budget.

"Take notice that Okiya Omtatah Okoiti, Eliud Karanja Matindi, Benson Odiwuor Otieno, and Blair Angima Oigoro, respectively, the 1st, 2nd, 4th and 5th respondents, being dissatisfied with the entire Ruling of the Court of Appeal (Warsame, M'Noti & Omondi, JJ.A) given at Nairobi on the 28th day of July 2023, intend to appeal to the Supreme Court against the whole decision," the notice read in part.

Omtatah wants the Supreme Court to intervene and suspend further implementation of the new tax law pending the determination of his case at the High Court that is challenging its legality.

Justice Warsame of the Appellate Court had ruled that the appeal filed by Treasury Cabinet Secretary (CS) Njuguna Ndung'u had 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 respondents in the petition had sought abeyance (temporary suspension) of seven days to move to the Court of Appeal.

The respondents including CS Ndung'u and the Attorney General's office had argued that the Legislature, Executive and Judiciary would face uncertainty during the time the Finance Act 2023 would remain suspended.

It was further argued that the orders which suspended the implementation of the Finance Act 2023 would likely cripple the government in relation to revenue mobilisation and expenditure approval, thus the respondents' prayer to the High Court to exercise its secondary jurisdiction and suspend the conservatory orders.

The petitioners led by Busia Senator Okiya Omtatah however argued that the reimbursement of taxes which the respondents had given an example of that can be implemented for employees at the payroll is impossible, citing instances of the 16 per cent Value Added Tax (VAT) on fuel.

The judge thus indicated in discretion that certain provisions whose implementation has an irreversible effect and cannot be refunded can be considered for suspension by the court, but not the whole act.

"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," added the ruling.

Omtatah had moved to the High Court to challenge the contentious Act before it was assented into Law by President William Ruto, arguing that the bill which generated uproar across the country is unconstitutional and thus sought the help of the court.

The Supreme Court nonetheless constituted a three-judge bench whereby Justice David Majanja will be the judge to preside over this case, thus taking the lead in terms of overseeing the proceedings and will be supported by Justice Lawrence Mogambi and Justice Christine Meori.