Treasury has scored a big win after the Supreme Court overturned a decision by the Court of Appeal to quash Finance Act, 2023.
The full bench of the Supreme Court, presided by Chief Justice Martha Koome, on Tuesday found that Parliament adhered to the required legislative process of public participation when Finance Bill, 2023 was enacted.
“… the Bill was subjected to public participation which was adequate and satisfactory taking into account the circumstances of enacting a Finance Act. To that extent, we find there was no basis to declare the entire Act unconstitutional,” the court said.
“In particular, we find that the Bill underwent the concurrence process under Article 110(3) of the Constitution; the Bill, being a money Bill, did not require consideration by the Senate and was subjected to public participation, which was adequate and satisfactory.”
Chief Justice Koome, Deputy Chief Justice Philomena Mwilu and Justices Mohammed Ibrahim, Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola and William Ouko said the Court of Appeal ought to have gone a step further and fashioned a remedy to suit the peculiar circumstances of the case.
“It was not enough to merely make a declaration of invalidity and leave it at that,” said the judges.
'Must consider effects of decisions'
They said where courts declared an Act unconstitutional, the judges must consider the effect of that declaration and, where necessary, suspend the application of that unconstitutionality for a prescribed time to allow for Parliament to change the law by either making it achieve its purpose without being unconstitutional or by removing the unconstitutional provision.
They added that the court must clearly set out what provision is unconstitutional by juxtaposing the offending provision against the Constitution, and the court must clearly and with precision explain the finding of unconstitutionality.
The judges, however, declared sections 76 and 78 of the Act amending Section 7 of the Kenya Roads Act and Section 87 of the Act amending Section 28 of the Unclaimed Financial Assets Act, 2011 as unconstitutional as they were neither incidental to nor directly connected to a money Bill.
The decision of the apex court comes months after the Court of Appeal upheld the finding by the High Cour t that declared Finance Act, 2023 unconstitutional. While dismissing an appeal by Parliament, the appellate court judges said the process leading to enactment of the law was fundamentally flawed and in violation of the Constitution as it was done without public participation.
