Okoiti & 6 others v Cabinet Secretary for the National Treasury and Planning & 3 others; Commissioner-General, Kenya Revenue Authority & 3 others (Interested Parties) (Constitutional Petition E181, E211, E217, E219, E221, E227, E228, E232, E234, E237 & E254 of 2023 (Consolidated)) [2023] KEHC 25873 (KLR) (Constitutional and Human Rights) (28 November 2023) (Ruling)
Neutral citation:
[2023] KEHC 25873 (KLR)
Republic of Kenya
Constitutional Petition E181, E211, E217, E219, E221, E227, E228, E232, E234, E237 & E254 of 2023 (Consolidated)
DAS Majanja, CW Meoli & LN Mugambi, JJ
November 28, 2023
Between
Okiya Omtatah Okoiti
1st Petitioner
Eliud Karanja Matindi
2nd Petitioner
Michael Kojo Otieno
3rd Petitioner
Benson Odiwour Otieno
4th Petitioner
Blair Angima Oigoro
5th Petitioner
Victor Okuna
6th Petitioner
Florence Kanyua Lichoro
7th Petitioner
and
The Cabinet Secretary for the National Treasury and Planning
1st Respondent
The Hon. Attorney General
2nd Respondent
The National Assembly
3rd Respondent
The Speaker National Assembly
4th Respondent
and
Commissioner-General, Kenya Revenue Authority
Interested Party
The Senate
Interested Party
Consumers Federation of Kenya
Interested Party
Kenya Export Floriculture, Horticulture and Allied Workes Union
Interested Party
Ruling
1.The court has issued a Judgment today, November 28, 2023 declaring certain sections of the Finance Act, 2013 unconstitutional. These include Sections 76 and 78 of the Finance Act, 2023 amending Section 7 of the Kenya Roads Act, 1999; Section 87 of the Finance Act, 2023 amending Section 28 of the Unclaimed Assets Act, 2011 and sections 88 and 89 of the Finance Act, 2023 which repeals section 21 of the Statutory Instruments Act, Section 84 of Finance Act, 2023 which amends the Employment Act.
2.Upon reading of the Judgment, counsel for the 3rd and 4th Respondents made an oral application for stay and or conservatory orders to stay the effect of the Judgment. This position was supported by the other respondents. The petitioners opposed the applications.
3.We have considered the parties’ arguments and take the following view of the matter. We have no doubt that this court had jurisdictions to grant orders of stay or conservatory orders pending appeal even when it has declared provisions of the law unconstitutional. This is part of the court’s power to frame relief taking into account the circumstances of the case.
4.We are cognisant of the fact that an order of unconstitutionality has far reaching effects not only on individuals but also the public and the operations of the State. As this was an informal application, the court could not interrogate the facts upon which the arguments were made.
5.We are also of the view that we do not have the last word on the matter at hand. The Respondents are entitled to exercise their undoubted right of appeal to the Court of Appeal and thence to the Supreme Court. In order to enable the Respondents’, review their position in light of the judgment we have rendered, we are inclined to grant an order of stay for a limited period.
6.We now grant the following orders:1.An order of stay be and is hereby issued staying the effects of the Judgment issued today, November 28, 2023 pending the filing of a formal application for stay/ conservatory orders in the Court of Appeal.2.The orders of stay shall remain in force until January 10, 2024.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 28TH DAY OF NOVEMBER, 2023. DAS MAJANJAJUDGEC MEOLIJUDGELN MUGAMBIJUDGE