The High Court has certified as urgent the petition by Busia Senator Okiya Omtatah challenging the proposed Finance Bill, 2024 arguing it violates sections of the Constitution and should be declared illegal and null.

In a brief ruling, Justice Lawrence Mugambi of Milimani Constitutional and Human Rights High Court found that the lawsuit seeking to suspend the proposed Finance Bill 2024 needs to be heard expeditiously and fixed the case for June 12.

The judge also ordered the National Assembly, Senate, CS Treasury Njuguna Ndung’u, and Attorney General Justin Muturi 14 days to file their responses to the lawsuit filed by Omtatah and activist Eliud Matindi.

“I have read the certificate of urgency dated May 23, 2024 together with the affidavit in support sworn by Omtatah and note that the court diary is currently packed. The court, however, certifies the matter as urgent and fixed it for June 6, 2024, which is the nearest date that the court can find. Parties are advised to adhere to the earlier directions as ordered by the Court,” Justice Mugambi ordered.

Stop deliberations

The directions by the court come days after Omtatah and Matindi moved to court under a certificate of urgency seeking orders to stop the Members of Parliament from deliberating on the Finance Bill 2024 which proposes a wide array of tax and administrative measures affecting different tax laws. “We seek the court to issue conservatory orders suspending the consideration by the National Assembly, in any form whatsoever of the Finance Bill 2024, which was published in Nairobi on  May 9, 2024, in the Kenya Gazette No. 102 of 2024.”

Suspend hearings

The two petitioners also want the court to suspend the ongoing public participation on the Finance Bill 2024 which is being conducted in the National Assembly’s public participation advert dated May 15, 2024. 

Omtatah decision to approach the court comes after the Chairperson of Finance and National Planning Committee of the National Assembly tabled the Finance Bill 2024 (the Bill) on May 13.

The Bill proposes various changes to the Income Tax Act (ITA), the VAT Act, 2013 (VAT Act), Excise Duty Act, Tax Procedures Act, 2015 (TPA), and the Miscellaneous Fees and Levies Act among other non-tax statutes.

Omtatah and Matindi argue that the Finance Bill, 2024, has been tabled prematurely because there is no approved fiscal framework for the Financial Year 2024-2025, which it is supposed to implement.

“The approved fiscal framework will only come to life with the enactment, with public participation, of the Appropriation Act, 2024,” they state in their court papers.

The duo contends that if the court does not intervene in real time to suspend the process, both their application and the petition will be lost because the unlawful and unconstitutional Finance Bill, 2024, will be approved by Parliament and signed into law by the President to become the Finance Act, 2024.

“Unless this court intervenes, there is no remedy when the legislative process is complete and the unlawful conduct in the course of the legislative process will by then have achieved its object especially because every statute enjoys the presumption of constitutionality. The resulting harm would be substantial and challenging to reverse, considering economic implications and potential arguments that government operations could be disrupted,” the petitioners say.

According to Omtatah, it is only after Parliament has procedurally enacted the Appropriation Act, 2024, that the Finance Bill, 2024, can lawfully and constitutionally be introduced in the National Assembly and, with public participation, be considered and approved by Parliament, and signed into law by the President as the Finance Act, 2024.

“So, in essence, there is no Finance Bill, 2024, without the fiscal framework contained in the Appropriations Act, 2024,” the senator states in his court papers.