The Supreme Court will today hear an appeal by the government challenging the Court of Appeal decision that declared the 2023 Finance Act unconstitutional.
The government, through the National Treasury, lodged the appeal after Court of Appeal judges Kathurima M'inoti, Agnes Murgor and John Mativo declared the law unconstitutional.
The judges found 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 declaration threatened to deny the National Treasury more revenue, barely months after the government lost a provisional Sh346 billion after month-long countrywide protests led to the rejection of the Finance Bill 2024 in July.
The National Treasury then moved to the Supreme Court where the judges suspended the Court of Appeal decision pending the determination of the appeal.
The apex court considered the uncertainty regarding the revenue-raising measures and the difficulty that may arise in the operations of the two levels of government if the judgement was not suspended.
"We are not convinced that the consequences of declaring the entire finance act as unconstitutional would be reversible should the appeal before us be successful," said the Judges.
In addition, the Apex court said public interest tilts in favour of granting the order sought by the Treasury to maintain stability in the budget and appropriation process pending the determination of the appeal.
On Tuesday, the judges will listen to submissions on the case.
