The Supreme Court has overturned a previous Court of Appeal decision that deemed the Finance Act 2023 unconstitutional. The Court of Appeal had nullified the entire Act, citing insufficient public participation. However, the seven-judge bench of the Supreme Court, led by Chief Justice Martha Koome, dismissed the appeal, stating that the Finance Bill had undergone adequate public participation, and the Act’s enactment did not warrant being declared unconstitutional.
The Supreme Court acknowledged a gap in the legal framework for public participation and urged Parliament to establish guidelines for the public engagement process outlined in the Constitution. They further recommended that Parliament ensure all versions of bills are accessible to the public throughout the legislative process and create measures for reviewing public feedback.
The matter of defining adequate public participation remains an active legal issue, as Parliament is still working to establish a comprehensive law, currently awaiting input from the Attorney General.
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The appeal to the Supreme Court was brought by the Cabinet Secretary for Treasury and National Planning, the Attorney General, the National Assembly, the Speaker of the National Assembly, and the Kenya Revenue Authority, opposing 53 respondents, led by Busia Senator Okiya Omtatah. Omtatah and the respondents had argued that the Court of Appeal’s decision to void the Act was correct, contending that the process did not fully consider Kenyans' views.
This Supreme Court ruling allows the government to continue collecting taxes introduced under the Finance Act 2023, including the 16% VAT on fuel, the housing levy, and increased pay-as-you-earn taxes. These tax measures had previously sparked widespread protests. The government now has relief as it resumes revenue collection targeted by the Act, especially following the rejection of the Finance Bill 2024 amidst protests.
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