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High Court bench to give directions on Finance Act petition Tuesday


High Court bench to give directions on Finance Act petition Tuesday

Thursday August 03 2023

Judge David Majanja at the High Court in Milimani. David Majanja is among the judges appointed to determine the contentious Finance Act, 2023. FILE PHOTO | POOL

A bench of three judges of the High Court appointed to determine the contentious Finance Act, 2023 will sit next week to give directions on the hearing of the matter.

The bench comprising of Justices David Majanja, Christine Meoli and Lawrence Mugambi directed the parties to appear before them on August 7, for directions.

The judges were picked by Chief Justice Martha Koome after Justice Mugure Thande certified that the nine petitions raised substantial questions of law.

The judge had also blocked Treasury CS Njuguna Ndung’u from implementing the Act but the freeze was lifted by the Court of Appeal on July 28, paving the way for the government to start collecting the contentious taxes.

Justices Mohamed Warsame, Kathurima M’inoti and Hellen Omondi ruled that tax being a continuous and annual mechanism, the public can get a rebate for overpaid taxes when making subsequent tax payments, should the appeal fail to succeed.

“We have no doubt in our mind that the Finance Act and the Appropriation Act are interdependent. While the former provides for the 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.

Busia senator Okiya Omtatah, one of the petitioners, has filed a notice to move to the Supreme Court.

The Act was challenged over being illegal as it was passed in violation of various provisions of the Constitution and the Public Finance (PFM) Act.

Mr Omtatah and Rarieda MP Otiende Amollo argued that the Bill was not subjected to the concurrence of the two Speakers, as required by law and that there were no revenue estimates in the Appropriation Act as required under the PFM Act and Article 220 of the Constitution.

But Prof Ndung’u challenged the freeze arguing that the government was losing half-a billion shillings daily and stands to lose approximately Sh211 billion in the current financial year if the order is not lifted.

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