The Supreme Court of Kenya on Tuesday overturned the Court of Appeal's judgment on the 2023 Finance Bill terming it Constitutional.

The lower courts had ruled that the Finance Act 2023 was unconstitutional after the shelving of the 2024 version. Petitioners argued that public participation was not lawfully conducted and as such, the piece of legislation was null and void.

The Supreme Court, however, ruled that public participation in the Finance Act 2023 was lawfully conducted.

"The preliminary objection on this Court's jurisdiction is overruled," Ruled the Supreme Court adding, "We hereby set aside the Court of Appeal's finding declaring the entire Finance Act, 2023 unconstitutional."

This consolidated appeal concerned the legislative processes leading to the enactment of the Finance Bill upon receiving Presidential assent on June 26, 2023. 

The Supreme Court in its verdict, however, upheld the two findings issued by the Court of Appeal. "We uphold the question relating to Section 84 (Affordable Housing Levy) introduced by the Finance Act, 2023 before the Court of Appeal was moot," the Supreme Court ruled.

Nonetheless, the Apex court upheld the Court of Appeal's ruling that 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 as unconstitutional as they were neither incidental nor directly connected to the money Bill.

A total of 11 petitions were lodged before the High Court by the 49 respondents, all of which challenged the constitutionality of the Finance Act, 2023.

The petitioners argued that parts of the Finance Act 2023 Act went beyond the scope of a Money Bill as defined in Article 114 of the Constitution. 

They also pointed out that the legislative process of the constitution of the bill lacked concurrence from both the Speakers of the National Assembly and the Senate.

According to the petitioners, the Senate did not consider the Bill, despite it containing matters touching on County Governments. The petitioners also submitted that the law was not subjected to public participation at the devolved units, arguments which the Supreme Court ruled out.

The Court of Appeal had dismissed the contentions on the Affordable Housing levy and Statutory Instruments Act as being moot. Additionally, it dismissed the cross-appeals for being devoid of merit except to the extent that the High Court misconstrued its jurisdiction under Article 165 in holding that it had no jurisdiction to intervene in policy matters.

The cross-appeal had sought an order to have all taxes collected from the date of enactment of the Act be refunded to the public.