Finance Act 2023 case: Supreme Court concludes hearing of appeal filed by Gov't

The Supreme Court on Wednesday concluded its two-day hearing session of the consolidated appeal challenging the Court of Appeal's invalidation of the Finance Act, 2023.

The 7-judge bench announced that it will deliver its judgment on notice soon, to clear the air on the legality of the law which the State was forced to revert to following the rejection of the Finance Bill, 2024.

The Court of Appeal invalidated the 2023 Act on July 31, labelling it unconstitutional for failing to consider the views of the public on various sections.

The main arguments centred on whether there had been adequate public participation before the enactment of the Act, whether there was a necessity for concurrence between the National Assembly and the Senate before the Bill was taken to the President for assent and whether there were revenue estimates in preparation of the Act.

Through their lawyers, the appellants, who are the Cabinet Secretary for Treasury and National Planning, the Attorney General (AG), the National Assembly, the Speaker of the National Assembly, and the Kenya Revenue Authority (KRA), argued that they had conducted enough public participation on the 2023 Act, contrary to the findings of the appellate court.

During the Tuesday session, the National Assembly team, led by lawyer Issa Mansour, argued that the House’s standing orders allow Parliament to introduce further changes to any Bill at the committee stage or in the Committee of the Whole House without undertaking another round of public participation.

“Nowhere did the National Assembly dismiss any submission, even where the same propositions were made by different individuals or institutions. This applied to the memoranda presented physically and on email,” said Mansour.

The KRA and the National Treasury further cautioned the bench that the government stands to lose revenue to the tune of Ksh.214 billion if the national exchequer is forced to revert back to the Finance Act 2022.

The government has already announced a loss of Ksh.346 billion following the rejection of the Finance Bill 2024.

On the other hand, the 53 respondents, led by Busia Senator Okiya Omtatah, maintained that the law was fundamentally defective and in violation of the Constitution, as it was enacted without public participation and that even the views collected were not considered.