Okiya Omtatah secures urgent certification in bid to overturn Finance Act stay orders

In a significant development, Busia Senator Okiya Omtatah achieved an early victory as the Court of Appeal certified his application to vacate stay orders issued under the Finance Act 2023 as urgent. The court has scheduled a hearing before a three-judge bench, according to a letter from the Registrar of the Court of Appeal, Moses Serem.

The application, dated December 8, 2023, involves Omtatah and three others listing 51 respondents, including the CS for Treasury, Attorney General, Senate and its speaker, the National Assembly and its speaker, and the CS for lands.

The applicants challenge the stay orders issued on November 28, 2023, by a three-judge High Court bench following their declaration that the housing levy introduced in the Finance Act 2023 was unconstitutional and discriminatory. The judges argued that the levy imposed taxes solely on salaried Kenyans, excluding those in the informal sector.

The High Court, however, issued stay orders on the implementation of the judgement until January 10, 2024. In response, Omtatah, along with Eliud Karanja, Benson Odiwuor, and Blair Angima, filed an urgent application in the Court of Appeal.

In their supporting affidavit, the applicants contended that the High Court's stay orders were unconstitutional and interfered with the Constitution. They argued that the court had overstepped its jurisdiction, allowing the national executive to engage in unconstitutional administrative action.

The applicants asserted that delaying justice by staying a declaration of unconstitutionality was detrimental, particularly in the case of the discriminatory housing levy. They emphasized the financial burden on a specific segment of the population (citizens in formal employment) and urged the court to lift the stay orders in the public interest.

Omtatah and the others stressed that the ongoing deduction of the unconstitutional housing levy would cause continued suffering for Kenyans, and the ripple effects could not be compensated through damages.

The upcoming hearing before the three-judge benchmarks a crucial step in Omtatah's efforts to overturn the stay orders and address the constitutional concerns surrounding the Finance Act 2023.