- Registrar of the Court of Appeal Moses Serem notified him of the certification, adding that the application will be heard by a three-judge bench.
- Challenging the orders issued on November 28, 2023, the applicants argued that the judges made a mistake by staying a declaration of unconstitutionality.
Image: FILE
It is an early win for Busia Senator Okiya Omtatah after the Court of Appeal certified as urgent his application to vacate stay orders issued under the Finance Act 2023.
In a letter seen by the Star and sent to Omtatah, Registrar of the Court of Appeal Moses Serem notified him of the certification, adding that the application will be heard by a three-judge bench.
"I have been directed to inform you that the application dated December 8, 2023, has been certified as urgent by the duty Judge. I have been directed to inform you that this application will be heard by a three Judge Bench constituted by the President of the Court of Appeal," the letter read in part.
In the application, Omtatah and three others have listed 51 respondents including the CS for Treasury, Attorney General, Senate and its speaker, the National Assembly and its speaker, and the CS for lands.
In the document challenging the orders issued on November 28, 2023, by a three-judge High Court bench, the applicants argued that the judges made a mistake by staying a declaration of unconstitutionality.
The ruling in question was issued shortly after Judges David Majanja, Christine Meoli and Lawrence Mugambi declared that the introduction of the housing levy, which is part of the Finance Act 2023, was unconstitutional.
They added that it was discriminatory since it imposed taxes on salaried Kenyans alone and excluded those working in the informal sector.
Shortly after however, the court issued stay orders on the implementation of the judgement.
"An order of stay be is hereby issued staying the effect of this judgement issued today November 28, 2023, pending the filing of a formal application for the stay of conservatory orders in the Court of Appeal," Justice Majanja ruled.
"This order of stay shall remain in force until January 10, 2024."
This saw Omtatah, Eliud Karanja, Benson Odiwuor and Blair Angima move to the Court of Appeal and filed for a certification of urgency.
In a supporting affidavit, they argued that it was unconstitutional for the High Court to order a stay in a manner that sabotaged the Constitution.
The applicants told the court that the judges had assumed jurisdiction they did not have, adding that the court had no capacity to allow the national executive to engage in administrative action that is unconstitutional.
They further submitted that staying a declaration of unconstitutionality as in the case, was a delay in delivering justice.
"The discriminatory housing levy places a financial burden on a specific segment of the population (citizens in formal employment). And the continued discrimination will exacerbate their economic challenges... Justice delayed is justice denied," the affidavit adds.
Omtatah and the others added that the ripple effect caused by the unconstitutional housing levy could not be compensated by way of damages.
They told the court that Kenyans would continue to suffer if the government continued deducting the levy.
"It is in the public interest that the stay orders be lifted," the applicants added.