The government yesterday suffered yet another setback after its bid to have the suspension of the Finance Act, 2023, lifted flopped at the Court of Appeal.
The High Court had on June 30, suspended implementation of the Finance Act following petitions by Busia Senator Okiya Omtatah and others.
The petitioners including the Law Society of Kenya, had moved to court to have the new law declared unconstitutional arguing that the Finance Act 2023 was illegal as the bill did not pass through the Senate as envisioned by the law.
The state had pleaded with the court to lift the orders saying there is bound to be a crisis at the National Treasury.
But Justice Mugure Thande in her ruling on July 10, said the state had not demonstrated to her satisfaction, grounds to warrant the setting aside of the orders of June 30.
“The petitioners had raised several grounds on which they claimed that the Finance Act is unconstitutional and my view is that were the court to set aside conservatory orders, the petition will be rendered a mere academic exercise,” Thande ruled.
She then certified the matter as one that raised a substantial question of law and thereby transmitted the file to the Chief Justice to assign a bench of not less than three judges to hear and determine the petition.
Chief Justice Martha Koome has already appointed High Court judges David Majanja, Christine Meoli and Lawrence Mugambi to determine the petition. The bench will be presided over by Majanja.
But the state moved to the Court of Appeal to have Thande's orders set aside saying the decision was affecting government operations.
Treasury CS Njuguna Ndung'u said the orders would cause the government to lose Sh211 billion in the current financial year and that it would force the state to borrow to bridge the gap.
Attorney General Justin Muturi who acted through lawyer Githu Muigai to represent the state, told Court of Appeal judges Mohamed Warsame, Kathurima M'Inoti and Hellen Omondi that the suspension orders had caused disruptions and would render the government unable to meet its financial commitments.
The government has to borrow in order to meet the gaps to operate. the suspension has the effect of affecting revenue collection leading to service disruptions for already budgeted revenue," the CS had submitted in his affidavit.
He had prayed to the court to immediately lift the High Court orders but the judges declined to do so and instead set July 28 for their ruling on the matter.