BY SAM ALFAN .
Busia Senator Okiyah Omtatah now wants Supreme Court to block the implementation of the Finance Act, 2023 after the Court of Appeal lifted an order stopping the government from collecting taxes using the contentious law.
Supreme Court judge Njoki Ndung’u certified the petition as urgent and directed the file to be placed to Chief Justice Martha Koome, for appointment of judges to determine the case.
“It is extremely urgent that this application is heard immediately because, on 28th July 2023, the Court of Appeal lifted the Conservatory Orders the High Court had imposed to preserve the amended petition pending before it and the lifting of the orders allowed the impugned Finance Act, 2023, which the petitioners claim is unconstitutional and, therefore invalid, null and void ab initio, to take effect instantly,” pleads the Busia Senator.
He told Supreme Court that it is necessary, in the interests of justice, for the Supreme Court to hear and determine the instant application before the Court of Appeal proceedings concerned are concluded.
“There is a great likelihood that if this application is not granted on priority, the respondents will execute, enforce or implement the impugned orders of the Court of Appeal rendering the intended appeal nugatory,” says Busia Senator.
He adds that he has made a prima facie case with a likelihood of success and the orders are not determinative of the petition of appeal.
“The circumstances surrounding this case are exceptional, demanding preservation of the substratum of the matter in the High Court and it is paramount that the Ruling and Orders of the Court of Appeal be stayed. 29. THAT the respondents will suffer no prejudice whatsoever if the application is heard and determined on priority basis in the interests of justice,” Omtatah told the Supreme Court.
He told the court the balance of convenience favours the granting of the orders sought.
Omtatah argues that the Court of Appeal lacked jurisdiction to interfere with the conservatory orders issued by the High Court on June 30 and extended on July 10, after hearing all parties to the suit.
According to Omtatah, the Court of Appeal’s ruling and orders made on 28th July, 2023 gravely prejudiced proceedings pending in the High Court before the three-judge bench.
He says unless the ruling is suspended, the hearing and determination of the petition before the High Court will be a mere academic exercise.
“It is unconscionable to subject Kenyan taxpayers to the Finance Act, 2023, in circumstances where, going by the Ruling of the High Court, the petitioners herein convinced the High Court that they have a prima facie case with high chances of success that the Act was unconstitutional, null and void ab initio, but which case will be rendered academic if conservatory orders are not granted to preserve its substratum.
The Busia Senator pointed out to the Court of Appeal did not address the ineligible expenditure estimates in the current budget aggregated to Sh1 billion, which is approximately one-third of the total expenditure estimates for the Financial Year 2023/2024, but dedicated a whole paragraph in their Ruling to the rebutted purported risk of failure to collect Sh. 211 billion from taxpayers.
“This raises a red flag as to what constitutes the public interest in the minds of the learned judges. To the petitioners, the public interest lies in NOT approving punitive taxes to finance the alleged approximately Sh. 1,035,166,099,434.00 ineligible expenditures and not in the alleged loss of Sh. 211 billion wringed from struggling taxpayers through punitive taxation,” submitted Omtatah.
He further submitted that the ultimate public interest in this matter lies not it just taxing Kenyans but ensuring that taxes are strictly within the confines of the Constitution and the law.
“It issued pre-emptive orders on both the intended appeals, and the substratum of the case in the High court, obstructing the natural progression through the jurisdictional hierarchy and the circumstances surrounding this case are exceptional, demanding preservation of the crux of the matter in the High Court by suspending/staying the Ruling and Orders of the Court of Appeal pending the hearing of the petition of appeal,” says the senator.
He said the court failed to appreciate the fact that a huge portion of Kenya’s tax revenue is generated from consumption, and that the rise in the costs of production, including from the hike in price for petroleum products, would be passed over to untraceable consumers of goods and services.
“For example, it is not possible to refund a consumer who buys off the shelf a product such as bread, whose price has been raised due to the escalation in the prices of petroleum. Or consumers who buy from a farmer who is charged a higher price to transport his farm produce to the market, and who in turn passes the extra costs to his customers,” he said.
According to Omtatah, it will also be impossible to refund the taxpayers the money after depriving them off unconstitutionally.
