The Supreme Court will Tuesday deliver a ruling on whether it will suspend a decision that declared the Finance Act 2023 as unconstitutional pending an appeal filed by Treasury CS.
The Apex court in a notice indicated that the ruling would be delivered through email at 10am.
Last month the appellate court declared the Act as unconstitutional saying the process leading to its enactment was flawed.
The Court of Appeal declared the Finance Act, 2023 unconstitutional, threatening to deny the National Treasury more revenue, less than two months after it lost a provisional Sh346 billion after month-long countrywide protests led to the rejection of the Finance Bill 2024.
Justices Kathurima M'inoti, Agnes Murgor and John Mativo said the various sections introduced post-public participation to amend the Income Tax Act, Value Added Tax Act, Excise Duty Act, Retirement Benefits Act and Export Processing Zones Act were unconstitutional as they were not subjected to fresh public participation.
The enactment of the Act elicited 11 constitutional petitions.
The cases were heard together by a three-judge bench led by the late Justice David Majanja.
They subsequently declared as unconstitutional some sections of the Act including the housing levy.
The bench ruled that section 84 of the Finance Act 2023 which amended the Employment Act to introduce the housing levy violated the principles of taxation for making distinction between formal and informal sectors. It was termed as discriminatory.
The bench, however, upheld the 16 per cent VAT on insurance premiums, the digital asset tax, and the tax on betting, saying they were constitutional and within the mandate of the National Assembly.
Aggrieved by the decision, the government appealed.
But the Court of Appeal in its judgement said the question of the housing levy being unconstitutional has already been made insignificant by the enactment of the Affordable Housing Act, 2024.