The Court of Appeal has granted an application by Cabinet Secretary (CS) National Treasury and Planning Njuguna Ndungu and Attorney General (AG) Justin Muturi to lift the high court orders that were blocking the implementation of Finance Act 2023. The act had faced nine petitions challenging its constitutional validity in the High Court.
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The petitioners contended that Finance Act 2023 violated several provisions of the Constitution and the PFM Act. They argued that the act had not undergone the necessary concurrence of the two Speakers as required by Article 110 of the Constitution. Additionally, they claimed that certain sections of the act, not present in the Finance Bill, were included without proper public participation. Moreover, they objected to section 84 of the act concerning the Housing Levy, stating that the act should only contain measures to collect revenue for financing budget expenditure estimates, which the levy lacked.
On 11th July 2023, CS Ndungu and AG Muturi approached the court with arguments that suspending the Finance Act would disrupt essential government operations, leading to significant financial losses in reduced revenue collection. They also emphasized that the government would be unable to fulfil its financial obligations and exercise executive authority, with the lost revenue being irrecoverable despite a high probability of success in their appeal.
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The Court of Appeal, comprising Judges M. Warsame, Kathurima M’Inoti, and H Omondi, found merit in the application made by the government officials. They believed that the twin principles for granting the requested orders were satisfied, and the public interest favoured setting aside the conservatory orders issued by the trial Judge. As a result, the Court of Appeal granted the application, lifting the suspension and prohibition on the implementation of the Finance Act 2023 until the appeal is fully heard and determined.
