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Supreme Court upholds parts of Finance Act 2023, declares sections unconstitutional

The Supreme Court upheld the constitutionality of some sections of the Finance Act 2023, while other sections were declared unconstitutional.

Chief Justice Martha Koome

In a landmark decision released today, the Supreme Court of Kenya partially allowed the consolidated appeal concerning the Finance Act, 2023.

The court upheld certain provisions of the act while declaring others unconstitutional, bringing an end to months of legal battles and uncertainty.

The court's ruling comes after a series of petitions challenging the constitutionality of the Finance Act, 2023, which was enacted on June 26, 2023.

Petitioners argued that the legislative process and content of the act were flawed, citing issues such as lack of Senate involvement, inadequate public participation, and the introduction of unconstitutional taxes.

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The High Court had previously declared several sections of the act unconstitutional, including the controversial Affordable Housing Levy.

However, the Court of Appeal overturned some of these findings, leading to the final showdown at the Supreme Court.

In its ruling, the Supreme Court affirmed that certain amendments to the Kenya Roads Act and the Unclaimed Assets Act were unconstitutional, as they were not directly related to the Finance Bill.

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However, the Court dismissed the petitioners' claims regarding the lack of Senate involvement and public participation, stating that the National Assembly had followed due process.

The Court also clarified that while courts have the jurisdiction to review policy matters, they should generally refrain from intervening in the legislative process.

It provided guidelines for determining the constitutionality of statutes and the appropriate remedies in cases of unconstitutionality.

The Finance Act, 2023, introduced a raft of new taxes and amendments to existing laws, aimed at raising revenue for the government's ambitious development agenda.

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However, the act faced strong opposition from various quarters, including civil society groups and opposition politicians, who raised concerns about its potential impact on the economy and the burden it would place on ordinary citizens.

The legal challenges to the act began shortly after its enactment, with petitioners filing cases in the High Court.

The High Court's ruling, which declared several sections of the act unconstitutional, was seen as a victory for the petitioners.

However, the government appealed the decision, leading to the Court of Appeal's ruling, which overturned some of the High Court's findings.

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The Supreme Court's decision today brings finality to the legal battles surrounding the Finance Act, 2023.

While the government has secured a partial win, the Court's ruling also highlights the importance of adhering to constitutional principles and ensuring public participation in the legislative process.

The long-term implications of this decision on Kenya's fiscal policy and economic landscape remain to be seen.

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