High Court to hear cases on controversial tax law today

The High Court will today hear the cases challenging the implementation of the Finance Act, 2018.

Lady Justice Wilfrida Okwany Tuesday certified the matter as urgent.

The judge asked activist Okiya Omtatah, who was the first to move to court to challenge the matter, to give copies of his case documents to Attorney General Paul Kihara and the National Assembly.

In a letter to the court, and addressed to the duty judge, the Attorney General had requested to be granted a hearing before any orders are issued.

Solicitor General Kennedy Ogeto, who had signed the letter on behalf of the AG, termed the matter as one of great public interests.

“The purpose of this letter therefore is to humbly and most respectfully request the court to accord the AG a hearing before it can consider granting any orders against him,” said Mr Ogeto.

SUED AG

Last Friday, Mr Omtatah sued the Attorney General and the National Assembly over the Finance Act, which was assented to by President Uhuru Kenyatta and published in the Kenya Gazette on September 21.

According to the activist, the Finance Bill died the moment it failed to garner two-thirds support of MPs.

He argued that the Speaker of the National Assembly was wrong to thereafter present a dead Bill to the President for assent.

Mr Omtatah said he filed his case in good time since the President assented to the bill last week on Friday — the same day the activist moved to court.

USURP POWERS

He said the matter is extremely urgent because implementation of the Finance Act will be a major violation of the Constitution.

“I believe that the resultant stalemate has to be resolved by the President negotiating with Parliament to enact a new Bill,” said Mr Omtatah.

He added: "It is a wrong interpretation of the Constitution which allows the President to usurp the powers of the Legislature, allowing him to legislate with the support of a minority of one-third of MPs.”

In his suit documents, the activist argued that the President’s powers are limited to returning a bill to Parliament accompanied with a memo containing his reservations.

ACCLAMATION VOTE

He said it is not only practically impossible to determine the two-thirds threshold through acclamation, but also totally unacceptable to the petitioner that such an important matter should be subjected to a vote by acclamation, robbing it of its objectivity and allowing the Speaker the discretion to subjectively determine the outcome.

At the same time, three lawyers have also filed a similar suit against National Assembly Speaker Justin Muturi and his temporary deputy Soipan Tuya.

The lawyers want the High Court to issue temporary orders declaring the decision of Ms Tuya as null and void.

They also want the said disputed law declared to have been passed unprocedurally, hence it violates the Constitution.

Mr Omtatah wants a temporary order seeking to bar the sued parties or any other person whatsoever from implementing the Finance Act 2018.