Supreme Court Dismisses Petition Challenging Finance Act 2023

The Supreme Court of Kenya has dismissed Busia Senator Okiya Omtatah's petition which contested the Court of Appeal's lifting of conservatory orders barring the implementation of the Finance Act 2023.

Omtatah had 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 country's highest court.

In a notice of appeal filed by Omtatah and six other petitioners, the activist wanted 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 intended 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.

"The four sets of written submissions filed out of time by the applicants on 15th August 2023 on the Court's online platform be and are hereby struck out," read the judgement by the Supreme Court in part.

"The responses and/or submissions filed out of time by the 1st, 2nd, 3rd, 4th, 5th, 8th and 9th respondents be and are hereby struck out. The applicants’ Notice of Motion dated 5th August, 2023 be and is hereby dismissed. There shall be no orders as to costs." 

The Supreme Court had observed that there was no merit regarding the arguments presented by Senator Omtatah, in particular the effects of the Finance Act being suspended.

The Judges sided with the Court of Appeal by stating that suspending the Finance Act would have adverse effects on the economy as well as members of the public.

The top court also observed that Omtatah misapprehended the tenor of this Court’s decision in Bia Tosha 2020, which was widely cited as the basis of the appeal.

"It is important to clarify that this Court in the said decision did not pronounce itself on any exceptional or unique circumstances that would warrant it to entertain an appeal emanating from Rule 5(2)(b) as alluded by the applicants. 

"The appeal also did not arise from an order made under Rule 5(2)(b) and we reiterated the settled position that this Court lacks jurisdiction to entertain an appeal arising from the exercise of the Court of Appeal’s discretion under the said Rule," the court ruled.

The Judges also noted that they were guided by the principle of public interest, especially due to the fact that the matter at hand involves many people, most of whom are not parties to the case. 

"Before issuing final orders, our attention has been drawn to a video clip circulating in the public domain showing, Okiya Omtatah Okoiti, the 1st applicant in the instant Motion, naming Judges of this Court in a derogatory manner, even as this matter was pending before us. We must remind parties that the dignity and authority of this Court or indeed any court of law should not be taken for granted.

"We would like to state without any equivocation that we shall not hesitate to cite and punish any party or person whose conduct interferes or attempts to interfere with the course of justice in relation to any matter pending determination before the Court or whose conduct deliberately undermines the Court’s authority or dignity. We find the message delivered in that video clip contemptuous and debasing of the dignity of this Court," the Supreme Court hit out at Omtatah.

Justice Warsame of the Appellate Court had ruled that the appeal filed by Treasury Cabinet Secretary (CS) Njuguna Ndung'u had merit.

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.