Supreme Court Temporarily Suspends Ruling Nullifying Finance Act 2023

The Supreme Court has temporarily suspended the decision by the Court of Appeal that declared the Finance Act 2023 unconstitutional.

In a ruling on Tuesday, August 20, the apex court granted a stay of the lower court's decision, meaning that the Finance Act 2023 will remain in force.

A conservatory order is hereby issued suspending and staying the declarations in Orders iii, iv, vi, vii & ix(i) issued in the Court of Appeal judgment dated 31st July, 2024 in Civil Appeals Nos. E003, E016, E021, E049, E064 & E080 of 2024 (Consolidated) pending the hearing and determination of the consolidated appeal before this Court," read part of the ruling.

The consolidated appeal is scheduled to be heard on September 10 and 11, 2024, starting at 9:00 a.m. on both dates.

The Supreme Court's decision now provides the government with a temporary reprieve, as it was relying on the Finance Act 2023 for revenue collection after the withdrawal of the Finance Bill 2024.

In the July 31 Court of Appeal ruling, Judges Kathurima M'Inoti, Agnes Kalekye Murgo, and John Mativo declared that the Finance Act 2023 was fundamentally flawed.

“We uphold the finding by the High Court that concurrence of both houses in the enactment of the Finance Act, 2023 was not a requirement under Article 114.

“Having found that the process leading to the enactment of the Finance Act, 2023 was fundamentally flawed and in violation of the Constitution, sections 30 to 38, 52 to 63, and 23 to 59 of the Finance Act, 2023 stand equally vitiated and therefore unconstitutional,” read part of the ruling.

The three-judge bench pointed out that the Kenyan constitutional framework calls for taxation according to the rule of law.