No let up on Finance Act as Omtatah appeals case

The Court of Appeal has certified as urgent an application by Busia Senator Okiya Omtatah challenging the decision by a three-judge bench allowing further implementation of some sections of the Finance Act 2023 including the Housing Levy that were declared unconstitutional.

Certifying the urgency of the suit, the Appellant Court said the case by Omtatah and four others raises serious constitutional issues that need to be addressed expeditiously.

“I have been directed to inform you that the application dated December 8 has been certified as urgent by the duty Judge. In this regard, the applicants are directed to serve the application on the respondents within two days effective today,” reads the notice sent to Omtatah by Registrar Court of Appeal Moses Serem.

The notice by Serem also says that the respondents including CS Treasury Njuguna Ndung’u, Attorney General Justin Muturi, Speaker of the National Assembly Moses Wetang’ula Senate Speaker Amason Kingi and Kenya Revenue Authority (KRA) have been granted two days to file their responses to the case.

Further, the Registrar informed the parties that the case lodged by Omtatah will be heard via video link and by a three-judge bench to be appointed by the President of Court of Appeal Daniel Musinga.

“I have been directed to inform you that this application will be heard by a three-judge bench constituted by the Hon President of the Court of Appeal. The application will be   heard by way of  GOTOMEETING   VIDEOLINK connected to the Court and Counsel on record. Advocates are required to be fully robbed,” the Registrar states in the notice.

Certificate of urgency

The directions by the Court of Appeal comes after Omtatah together with activists Eliud Matindi, Benson Otieno and Blair Oigoto filed an application under certificate of urgency seeking to set aside the stay orders by the High Court issued on November 28 suspending its own judgment in regard to the Finance Act 2023.

“Unless the application is urgently heard and determined, the applicants and the people of Kenya will suffer great loss and damage if the respondents continue executing their mandates in violation of the Constitution and national legislation,” the court papers read.

“Pending the hearing and determination of the intended appeal, the Court be pleased to issue an order suspending the orders of the three-judge of the High Court issued on November 28,” seek the four petitioners.

While seeking to vacate the orders that allowed Kenyans to continue paying the high taxes imposed on them by President William Ruto’s administration through the Finance Act 2023, the Senator and his three co-petitioners argue the High court judges erred in law and in fact by assuming jurisdiction which they did not have while suspending their decision.

Act unconstitutional

They argue that when High Court Justices David Majanja, Christine Meoli and Lawrence Mugambi ruled that the Housing Levy and some other sections of the Finance Act, 2023 to be unconstitutional, immediately, the law in issue became null and void and ceased to exist and it could not be brought back into existence by any machinations or craft of the court.

Omtatah said Article 2(4) of the Constitution, was an absolute bar, which prohibits the court from allowing the continued violation of the constitution through its order suspending the effectiveness of its own final decision. The Senator says that the bench’s actions violated the national values and principles of governance, including the rule of law, good governance, integrity, transparency and accountability.

Omtatah seeks to have the orders set aside saying that the government has already introduced a fresh Affordable Housing Bill sponsored by National Assembly Majority Kimani Ichung’wah which has since been tabled in Parliament following the court decision.

“There is no basis for continuing to stay the order “prohibiting the respondents from charging, levying or in any way collecting tax, otherwise known as the ‘Affordable Housing Levy’” because, vide a special issue of the Kenya Gazette (Kenya Gazette Supplement No. 236), published in Nairobi on  December 4, 2023, the National Executive and the National Assembly have accepted the verdict of the Court by publishing the Affordable Housing Bill, 2023 (National Assembly Bills No. 75) to cure the finding of unconstitutionality of the levy,” Omtatah states.

The Bill was introduced for First Reading on December 8, a day the MPs were taking a long Christmas break. The proposed bill seeks to anchor the 1.5 per cent Housing Levy on salaried Kenyans. He contends that the court had no capacity to allow the national executive to engage in administrative action that is not constitutional or lawful contrary to Article 47(1) of the Constitution.

“Moreover, every individual, including the learned judges on the bench, has an obligation to respect, uphold and defend the Constitution in their actions or omissions. Therefore, the decision by the court to allow a law which it had found to be unconstitutional and, therefore,null and void is a gross violation of the Constitution,” the politician says.

“In Kenya, unlike in other jurisdictions across the world which allow courts to suspend their own declarations of invalidity of statutes, the Courts don’t have by dint of Article 2(4), any law that is unconstitutional is no law at all, and no court or government official should apply or enforce laws that are unconstitutional,” he adds.