The state got a win on Friday after the court of appeal lifted an order that had suspended implementation of the finance Act 2023.
The order by the court of appeal lifted the suspension issued by high court judge Mugure Thande pending hearing of a case challenging the Finance Act.
The three-judge bench issued the ruling after Treasury CS Prof Njuguna Ndung’u appealed the decision of the high court arguing that the state was losing over half a billion shillings daily due to the suspension.
The appeal judges Mohammed Warsame, Hellen Omondi and Kathurima M’inoti ruled that the appeal by Ndung’u was arguable and they had been persuaded to lift the order of the high court.
It was their finding that the Finance Act and the Appropriation Act are interdependent further saying that while the Finance aspect provides for generation of funds, the appropriation provides for expenditure thus there can be no expenditure without a mode of generation of the funds.
They also noted that the finance act has a lifespan of 90 days beyond which the next budgetary cycle is set in motion.
The court said that it was certain from the evidence produced by the state that the revenue was to be collected with the operationalization of the Act.
The AG had argued that they estimated to generate over Sh 211 billion with an average rte of Sh 500 million which they were losing by the Act being suspended.
The court also ruled that tax is a continuous and annual mechanism and the members of the public can get a rebate for overpaid taxes and levies when making subsequent tax payments.
The court also faulted the high court judge for suspending the whole Finance Act instead of suspending specific provisions in the act.
“Had the trial judge considered the substantial and irreversible public interest in this matter, the court would have been hesitant to suspend the whole Act” the court said.
In the case, Senator Okiya Omtatah and 6 other activists had challenged implementation of the Finance Act ruling that due process was not followed in implementing it.
