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Busia Senator Okiya Omtata yesterday  requested the High Court to declare the Finance Act 2023 null and void saying it is unconstitutional for lacking public participation.

In his plea before a three-judge Bench comprising of David Majanja, Lawrence Mugambi and Christine Meoli, Omtatah told the court that rules were not followed when the bill was enacted hence it does not have grounds of implementation.

He told the court that enactment of the housing levy purported to amend section 84 of the Employment Act of the constitution would attract the public views and involve the National Assembly and the Senate before it is passed as law.

“Article 209 of the Constitution is very clear on what tax to be imposed and there is nothing like a housing tax,” he said.

The establishment of the housing levy is also discriminatory because it is targeting only formal employees and employers where it is made a mandatory contribution.

The senator urged the court to execute EPRA boss Daniel Kiptoo for implementing the fuel levy while the High Court had issued orders suspending it.

“I urge this honourable court to punish Kiptoo who issued the inventory to Parliament to pass the bill ignoring the court order and serve as an example,” said Omtata.

 Omtata told the court that KRA was mandated to be the collector of the levy which is infringement of the law since in the constitution there is no housing levy.

In this case, any law enacted without following the right procedure of involving the same House, the National Assembly and the Senate and include the public is illigitimate and should be declared null and void.

There was an error when the bill was presented before Parliament at the same time with 2023- 2024 financial budget and it was passed expecting it to be discussed later.

He said that the court has the mandate to courageously face the executive officers when they are wrong and charge them.

 Omtatah has challenged the legality of the Finance Act arguing it did not pass through the Senate yet it affects matters touching on counties such as housing.

The petitioner asked the judges to suspend implementation of specific clauses including that which introduces the housing tax.

Suspended implementation

The Court of Appeal has since lifted High Court orders that suspended the implementation of the Finance Act 2023 allowing the government to start collecting the levies.

As such, the government has since backdated the remittance of the housing tax to July 1 and asked employers to remit the deductions when paying salaries.

Seven human rights groups have since filed a case under a certificate of urgency seeking to have the government stopped from backdating the taxes.

The Kenya Human Rights Commission, Katiba Institute, The Institute for Social Accountability, Transparency International Kenya, International Commission of Jurist, Siasa Place and Tribeless Youth argue that backdating the taxes would have adverse effects on the health and livelihoods of Kenyans if conservatory orders are not issued.

The petitioners have asked the court to suspend the particular sections of the Finance Act especially that which introduces the housing tax and increases VAT on fuel products.

Lawyers representing Treasury Cabinet Secretary Njuguna Ndung’u and the Attorney General have however urged the court to dismiss the petition.

Through senior counsel Githu Muigai, the State argues that the petitions are politically instigated in order to create chaos.

The three-judge bench said they will issue their ruling on the matter on November 24, after considering all the written and oral submissions.