Busia Senator Okiya Omtatah has said it will be impossible to undo the damage caused by implementation of the Finance Act once they successfully demonstrate to the Court how Kenyans were subjected to an unconstitutional tax regime.
In an urgent application filed before the Supreme Court, Omtatah says Kenyan taxpayers will be subjected to losses that cannot be remedied should the Petition pending in the High Court succeed.
"Kenyan taxpayers will be subjected to irreparable harm should the Petition pending in the High Court succeed and it is demonstrated that they were subjected to an unconstitutional tax regime," says Omtatah
It is on this ground that he has pleaded with the Supreme Court to suspend orders of the Court of Appeal that set the stage for the implementation of the Finance Act.
He says if the application is not prioritised,the state will implement the challenged orders of the Court of Appeal rendering their intended appeal useless.
The Court of Appeal recently lifted an order issued last month by the High Court that had temporarily stopped implementation of the Finance Act 2023.
Treasury CS Njuguna Ndung'u had argued before court that the government loses half-a billion shillings daily, following the freeze.
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 is 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 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.
Omtatah in his application before the Apex court says the Court of Appeal lacked jurisdiction to interfere with the Orders that the High Court had.
“Unless the Court of Appeal’s Ruling and Orders made on 28th July, 2023 are suspended, the hearing and determination of the amended petition by three-judge bench in the High Court will be a mere academic exercise,” says Omtatah
Supreme Court Judge Njoki Ndung’u has already referred the matter to Chief Justice Martha Koome to empanel a bench to hear and determine the matter.
Omtatah argues that it is extremely urgent that his application is heard because, as a result of the Court of Appeal lifting the Orders of the High Court, the disputed Finance Act, which he and others claim is unconstitutional took effect immediately and Kenyan taxpayers have been subjected to it.