• Omtatah and three others filed the application at the apex court on August 9 seeking to set aside orders of the Court of Appeal that reinstated the Finance Act, 2023.
• The appellate court lifted the suspension on July 28 which had been stayed by the High Court on June 30.
Image: THE STAR
The Supreme Court will deliver its ruling on the appeal filed by Busia Senator Okiya Omtatah against the controversial Finance Act, 2023.
Registrar of the Supreme Court Letizia Wachira made the revelation on Wednesday via a communication to Omtatah dated September 4.
"Take note that the ruling in this matter via email on Friday, September 8, 2023, at 10am before the Supreme Court of Kenya," she said.
Omtatah and three others filed the application at the apex court on August 9 seeking to set aside orders of the Court of Appeal that reinstated the provisions of the Finance Act, 2023.
The appellate court lifted the suspension on July 28 which had been stayed by the High Court on June 30.
Treasury CS Njuguna Ndung'u argued before the court that the government lost half a billion shillings daily, following the freeze of the Act.
Justices Mohammed Warsame, Kathurima M’Inoti and Hellen Omondi ruled that the Finance Act has a life span of 90 days beyond which the next budgetary cycle would be set in motion.
“We have no doubt in our mind that the Finance Act and the Appropriation Act are interdependent. While the former provides for the generation of the funds, the latter provides for the expenditure. There can be no expenditure where the mode of generation of the funds has not been provided for,” the judges said.
Following the lifting of the freeze, the government implemented provisions of the Finance Act in August.
It included backdating the 1.5 per cent housing levy from employees' salary to July 1 when the Act was originally supposed to take effect.
In his appeal before the Supreme Court, Omtatah said it would be impossible to undo the damage caused by the implementation of the Finance Act once they successfully demonstrate to the court how Kenyans were subjected to an unconstitutional tax regime.
It was on these grounds that Omtatah and the other three petitioners pleaded with the Supreme Court to suspend orders of the Court of Appeal that set the stage for the implementation of the Finance Act.
Omtatah argued to the apex court that the Court of Appeal lacked jurisdiction to interfere with the orders that the High Court issued.
"Unless the Court of Appeal’s ruling and orders made on July 28, 2023, is suspended, the hearing and determination of the amended petition by a three-judge bench in the High Court will be a mere academic exercise,” Omtatah said.
He also argued that the bill never passed through the Senate for deliberations as is required by law making the Act illegal.
Omtatah also argued that the housing levy is unlawful as its implementation lacks a legal framework and the tax burden is not equitably shared.
He further said a good portion of Kenyans are already struggling with mortgages and it's unfair to subject them to a housing project which is the preserve of county governments.
"By purporting to create a housing fund meant to receive national contributions towards implementation of a purported nationwide affordable housing program, the national government has unconstitutionally assumed the role of the county government," he said.