Supreme Court upholds Finance Act 2023, invalidates key sections

 The Supreme Court has upheld the Finance Act 2023 but found specific sections unconstitutional citing procedural violations.

On Tuesday, October 29, the apex court ruled that Sections 76 and 78, which amended the Kenya Roads Act, and Section 87, which modified the Unclaimed Financial Assets Act, were unconstitutional as they were not linked to a money Bill.

In its ruling, the court asserted its jurisdiction to review the consolidated appeals.

It deemed the matter regarding the Affordable Housing Levy moot, meaning it no longer required consideration.

The court also confirmed that a Finance Bill qualifies as a money Bill under Article 114 of the Constitution.

This ruling follows an appeal by the government, including Attorney General Justin Muturi and the Cabinet Secretary for Treasury, after the Court of Appeal declared the Finance Act unconstitutional.

The appellate court had raised concerns about procedural issues, notably that amendments introduced post-public participation violated principles of transparency.

“The amendments introduced after the public consultation failed to meet constitutional requirements,” said Judge Kathurima M'inoti, one of the presiding judges.

In August, the government argued for the overturning of the lower court’s ruling, citing economic implications.

 Githu Muigai, representing the Attorney General, claimed the Act is critical for economic stability and warned that its invalidation could trigger a fiscal crisis.

At the same time, activists and civil society groups urged the Supreme Court to support the lower court's ruling.

Busia Senator Okiya Omtatah stated the government did not adequately engage with impacted communities during the legislative process.

“The failure to engage marginalised groups violates principles of inclusivity mandated by the Constitution,” Omtatah said.

The Supreme Court noted that public trust in the legislative process must be preserved, warning against the potential dangers of procedural flaws in law-making.