Cabinet Secretary for the National Treasury and Planning 4 Others v Okoiti 52 Others Bhatia (Amicus Curiae) (Petition E031 E032E033of2024 (Consolidated)) 2024KESC63(KLR) (29October2024) (J

REPUBLIC OF KENYA
IN THE SUPREME COURT OF KENYA

(Coram: Koome; CJ & P, Mwilu; DCJ & VP, Ibrahim, Wanjala, Njoki,
Lenaola & Ouko, SCJJ)
PETITION NO. E031 OF 2024 AS CONSOLIDATED WITH

PETITION NOS. E032 & E033 OF 2024
―BETWEEN―
THE CABINET SECRETARY FOR THE
NATIONAL TREASURY AND PLANNING................1ST APPELLANT
THE ATTORNEY GENERAL....................................2ND APPELLANT

THE NATIONAL ASSEMBLY..................................3RD APPELLANT
THE SPEAKER OF THE
NATIONAL ASSEMBLY...........................................4TH APPELLANT
KENYA REVENUE AUTHORITY.............................5TH APPELLANT
―AND―
OKIYA OMTATAH OKOITI...................................1ST RESPONDENT
ELIUD KARANJA MATINDI.................................2ND RESPONDENT
MICHAEL KOJO OTIENO....................................3RD RESPONDENT
BENSON ODIWUOR OTIENO.............................4TH RESPONDENT
BLAIR ANGIMA OIGORO....................................5TH RESPONDENT
VICTOR OKUNA..................................................6TH RESPONDENT
FLORENCE KANYUA LICHORO...........................7TH RESPONDENT
DANIEL OTIENO ILA..........................................8TH RESPONDENT
Petition Nos. E031, E032 & E033 of 2024 Page 1 of 137
RONE ACHOKI HUSSEIN....................................9TH RESPONDENT
HON. SENATOR EDDY GICHERU OKETCH......10TH RESPONDENT
CLEMENT EDWARD ONYANGO.........................11TH RESPONDENT
PAUL SAOKE......................................................12TH RESPONDENT
LAW SOCIETY OF KENYA.................................13TH RESPONDENT
AZIMIO LA UMOJA ONE
KENYA COALITION PARTY................................14TH RESPONDENT
KENYA HUMAN RIGHTS COMMISSION...........15TH RESPONDENT
KATIBA INSTITUTE...........................................16TH RESPONDENT
THE INSTITUTE FOR SOCIAL
ACCOUNTABILITY (TISA).................................17TH RESPONDENT
TRANSPARENCY INTERNATIONAL KENYA......18TH RESPONDENT
INTERNATIONAL COMMISSION OF
JURISTS-KENYA (ICJ KENYA)...........................19TH RESPONDENT
SIASA PLACE....................................................20TH RESPONDENT
TRIBELESS YOUTH............................................21ST RESPONDENT
AFRICA CENTER FOR OPEN GOVERNANCE....22ND RESPONDENT
ROBERT GATHOGO KAMWARA.......................23RD RESPONDENT
TRADE UNIONS CONGRESS OF KENYA...........24TH RESPONDENT
KENYA MEDICAL PRACTITIONERS’
PHARMACISTS AND DENTIST UNION.............25TH RESPONDENT
KENYA NATIONAL UNION OF NURSES............26TH RESPONDENT
KENYA UNION OF CLINICAL OFFICERS..........27TH RESPONDENT
FREDRICK ONYANGO OGOLA..........................28TH RESPONDENT
NICHOLAS KOMBE...........................................29TH RESPONDENT
WHITNEY GACHERI MICHENI.........................30TH RESPONDENT
STANSLOUS ALUSIOLA.....................................31ST RESPONDENT
HERIMA CHAO MWASHIGADI.........................32ND RESPONDENT
DENNIS WENDO...............................................33RD RESPONDENT
MERCY NABWIRE.............................................34TH RESPONDENT

BENARD OKELO................................................35TH RESPONDENT
NANCY OTIENO.................................................36TH RESPONDENT
MOHAMED B. DUB............................................37TH RESPONDENT
UNIVERSAL CORPORATION LIMITED..............38TH RESPONDENT
COSMOS LIMITED............................................39TH RESPONDENT
ELYS CHEMICAL INDUSTRIES.........................40TH RESPONDENT
REGAL PHARMACEUTICALS.............................41ST RESPONDENT
BETA HEALTHCARE LIMITED..........................42ND RESPONDENT
DAWA LIMITED................................................43RD RESPONDENT
MEDISEL KENYA LIMITED...............................44TH RESPONDENT
MEDIVET PRODUCTS LIMITED........................45TH RESPONDENT
LAB AND ALLIED LIMITED...............................46TH RESPONDENT
BIOPHARM LIMITED........................................47TH RESPONDENT
BIODEAL LABORATORIES LIMITED................48TH RESPONDENT
ZAIN PHARMA LIMITED..................................49TH RESPONDENT
THE SPEAKER OF THE SENATE......................50TH RESPONDENT
CONSUMERS FEDERATION OF KENYA (COFEK)… 51ST
RESPONDENT KENYA EXPORT FLORICULTURE
HORTICULTURE, AND ALLIED
WORKERS UNION.............................................52ND RESPONDENT
DR. MAURICE JUMAH OKUMU........................53RD RESPONDENT
―AND―
GAUTAM BHATIA.................................................AMICUS CURIAE
(Being appeals against the Judgment of the Court of Appeal (M’Inoti,

Murgor & Mativo, JJ.A.) delivered on 31st July, 2024 in Civil Appeal No.
E003 of 2024 as consolidated with Civil Appeal Nos. E106, E021, E049,
E064, & E080 of 2024)
Representation:
Prof. Githu Muigai, SC, Kiragu Kimani, SC,
Mr. Paul Nyamodi & Mr. Mahat Somane for the 1st and 2nd
appellants (Attorney General’s Chambers)

Mr. Issa Mansur, Mr. Josphat Kuyioni, Mr. Sherrifsam
Mwendwa & Mr. Mbarak Ahmed for the 3rd and 4th
appellants.
(Kuyioni Josphat Advocate)
Mr. George Ochieng, Ms. Diana Almadi & Mr. Kelvin Jumah for the
5th appellant (G. O. Ochieng Advocate)
Mr. Okiya Omtatah Okoiti the 1st
respondent (Appearing in person)
Mr. Eliud Karanja Matindi the 2nd respondent
(Appearing in person)
Mr. Bryson Ometo for the 3rd respondent
(Rachier & Amollo LLP)
Mr. Benson Odiwuor Otieno the 4th
Mr. Blair Angima Oigoro the 5th
Mr. Ian Mbithi for the 6th respondent
(Okong’o Omogeni & Company
Advocates)
Mr. Sang Cherongis for the 11th
respondent (Sang Cherongis Law
Advocates LLP)
Mr. Charles Kanjama, SC, Mr. John Leakey & Mr. Noel Okwach for the
13th respondent
(Okwach & Co. Advocates and Muma & Kanjama Advocates)
Mr. Ochieng Oginga for the 14th
respondent (Ochieng Oginga & Company
Advocates)
Mr. Malidzo Nyawa, Dr. Henry Gichana
& Mr. Ray Odanga for the 15th-19th & 22nd
respondents (Joshua Malidzo Nyawa Advocate)
Mr. Ochiel Dudley, Mr. Evans Ogada
& Ms. Caroline Muneeni for the 20th & 21st
respondents (Prof. Migai Akech & Associates
Advocates)

Ms. Mercy Makila for the 24th -27th
respondents (C. O. Wasonga & Company
Advocates)
Mr. Jotham Arwa & Ms. Marren Adunga for the 38th -49th
respondents (Rachier & Amollo LLP)

Mr. David Benedict Omulama for the 52nd
Mr. Bosire Bonyi for the amicus
curiae (G.B. Bosire & Company
Advocates)
No appearance for the 7th -10th, 12th, 23rd, 28th -37th, 50th and 51st
respondents
JUDGMENT OF THE COURT

A. INTRODUCTION
[1] Three appeals were filed before this Court at the instance of the
appellants namely, SC Petition Nos. E031, E032 & E033 of 2024.
In addition, two cross appeals were filed jointly by the 15th -19th & 22nd
respondents and the 38th -49th respondents, respectively. The appeals
primarily revolve around whether the Finance Act, 2023 was enacted
in line with the prescribed constitutional and statutory parameters;
and the reliefs that can issue upon a court finding a statute
unconstitutional. Consequently, on 15th August 2024, this Court on its
own motion consolidated the appeals and designated SC Petition No.
E031 of 2023 as the lead file. The consolidated appeal challenges the
judgment of the Court of Appeal (M’inoti, Murgor and Mativo, JJ.A.)
dated 31st July, 2024 in Civil Appeal No. E003 of 2023 as
consolidated with Civil Appeal Nos. E016, E021, E049, E064 &
E080 of 2023, which declared, inter alia, the Finance Act, 2023
unconstitutional.
B. BACKGROUND
(i)Litigation History
(a) At the High Court

[2] As codified in our laws and is customary, the national budgetary
process for a subsequent Financial Year (FY) (which begins on the 1 st
of July) commences towards the end of the previous FY (which ends
on the 30th of June), and entails a

series of vital steps. These steps range from preparation of an annual
Budget Policy Statement by the National Treasury, and approval of
the same by the Cabinet, submission of estimates of revenue and
expenditure of the National Government as well as those of
Parliament and the Judiciary for the subsequent FY to the National
Assembly for approval, to the enactment of the Appropriation and
Finance Acts. This appeal concerns the budgetary making process for
the FY 2023/2024, and in particular, the legislative process leading to
the enactment of the Finance Bill, 2023 (the Bill) into the Finance Act,
2023 (the Act) upon receiving Presidential assent on 26 th June, 2023.
Upon that passage, a total of 11 petitions were lodged before the High
Court by the 1st-49th respondents, all of which challenged the
constitutionality of the Act. The petitions were subsequently
consolidated.
[3] The contention against the Act was broadly two-fold; that the
legislative process and the contents of the Act were unconstitutional.
Firstly, regarding the former, it was argued that the legislative
process that resulted in the Act was not subjected to the concurrence
process of both Speakers of Parliament (National Assembly and
Senate) as envisaged under Article 110(3) of the Constitution; and
that the Bill was not considered by the Senate yet it was alleged that
it contained matters concerning County Government. It was also
urged that public participation with respect to the Bill was not
sufficient since most views/proposals arising therefrom were rejected;
that new sections introduced by the National Assembly in the Bill by
way of amendments, were neither subjected to public participation
nor included in the First and Second Reading before the National
Assembly contrary to Article 201 of the Constitution; and that
contrary to Article 221 of the Constitution, the estimates tabled before

the National Assembly were incomplete since the estimates of
revenue of the National Government had been omitted.
[4] Secondly, it was postulated that some of the contents of the Act
fell outside the scope of a money Bill as delineated under Article 114
of the Constitution. These

provisions included Section 89 which repealed Section 21 of the
Statutory Instruments Act that provided for an automatic revocation
of a statutory instrument 10 years after its enactment; Section 76
thereof that amended Section 7 of the Kenya Roads Board Act by
providing for the composition of Kenya Roads Board; and Section 87
of the Finance Act that amended Section 28 of the Unclaimed
Financial Assets Act by providing that a beneficiary may designate a
proxy to whom the Unclaimed Assets Authority may make payments in
respect of any claim or asset; the introduction of the affordable
housing levy by Section 84 thereof was also challenged on the
grounds that, the said levy is not contemplated under Article 209(1) of
the Constitution. The said section was also impugned on the ground
that there was no legislative framework with respect to the
administration of the said levy and that the levy was discriminatory in
so far as it was intended to be imposed only on employees in formal
employment, amongst other reasons.
[5] In addition to the foregoing, it was posited that some of the

provisions of the Act which amended various laws relating to taxation
violated the Constitution. For example, it was argued that Section 2 as
read with Section 21 thereof which amended Section 35 of the Income
Tax Act by imposing taxes on entertainment violated the Constitution
by usurping the functions of County Government. Section 2 thereof
was challenged on the basis of introducing digital monetization as a
tax on payments for entertainment, social, literal, artistic, education
or any other material electronically through any medium or channel;
that the imposition of tax on “winnings” from betting, gaming and
lotteries is a function of County Government; Sections 40 to 48 that
amended Sections 2, 20, 28, 40, the First and Second Schedule of the
Excise Duty Act and introduced a requirement for the remittance of

excise duty on betting and gaming within 24 hours of closure of a
transaction, as well as excise duty on alcoholic beverages within 24
hours of removal of the goods from the stock room; and Section 33
thereof which amended Section 17 of the VAT Act to introduce 16%
VAT on insurance compensation.

[6] In totality, the consolidated petition claimed that the Act was
discriminative, punitive and unconstitutional. It sought a declaration
that the entire Act is unconstitutional, and in the alternative, a
declaration of specific provisions of the Act as being unconstitutional.
[7] In response, the appellants herein, who were some of the

respondents in the High Court, stated that the Bill proposed an array
of tax modifications to increase revenue so as to meet the
government's budget of Kshs.3.6 trillion for the FY 2023/2024. It was
contended that the proposals in the Bill were within the provisions of
Article 109 (1), (2) and (3) of the Constitution; that the Bill had no
direct bearing on matters concerning counties, and therefore, did not
require the input of the Senate either by way of concurrence or
consideration. Pertaining to public participation, they asserted that
the same was adequate since it was conducted directly through
submission of 1,080 memoranda by stakeholders, and indirectly
through the peoples’ elected representatives. As far as the appellants
were concerned, the National Government is authorised to impose tax
on income, like in the case of the affordable housing levy, by dint of
Article 209(1) of the Constitution to support the national housing
policy. As for the amendments to the tax legislation, they urged that
the amendments were for purposes of broadening the tax base and
generating additional revenue for the government. Finally, they
maintained that the enactment process and the contents of the Act
were within the confines of the law.
[8] The 51st and 52nd respondents herein who were joined in the High
Court as interested parties opposed the consolidated petition on more
or less similar grounds as the appellants. Dr. Maxwel Miyawa and the
53rd respondent were admitted to the suit as amici curiae. They have
however not filed any written brief as is required of an amicus by the

Rules of this Court, nor have they participated in any way in the
proceedings before this Court.
[9] By a judgment dated 28th November 2023, the High Court (Majanja,
Meoli &
L. Mugambi, JJ.) found that the consolidated petition turned on six issues
namely,

whether the procedural requirements pertaining to the legislative
process of the Bill were adhered to; whether the public participation
conducted was sufficient; whether certain taxes cited in the petition
and as enacted by the Act are unconstitutional; whether Section 84 of
the Act which introduced the housing levy is unconstitutional; what
reliefs, if any, should the court grant in the circumstances; and who
should bear the costs of the consolidated petition?
[10]On the first issue relating to procedural requirements, the court

delineated three sub-issues, that is, whether the Bill was a money Bill
in terms of Article 114, and whether it contained matters outside the
scope of a money Bill; whether the Bill required the concurrence of
the Speaker of Senate; and whether the estimates of revenue and
expenditure were included in the Appropriation Act. Starting with the
first sub-issue, the court found that the Bill was a money Bill, and that
it contained certain matters which were not contemplated under
Article 114(3) of the Constitution. In that regard, the learned Judges
held that Section 87 of the Act which amended Section 28 of the
Unclaimed Financial Assets Act by providing that a beneficiary may
designate a proxy to receive payments in respect of any claim or
asset; Sections 88 and 89 of the Act which repealed Section 21 of the
Statutory Instruments Act on the automatic revocation of statutory
instruments after the expiry of 10 years after enactment; and Section
76 of the Act which amended Section 7 of the Kenya Roads Board Act
on the composition of the Board were neither incidental nor directly
connected to a money Bill. To that extent, the court found those
provisions unconstitutional.
[11] On the second sub-issue, while appreciating that what it

termed as a Bill containing estimates of revenue was not tendered
before it, the court ascertained that as part of the budget making

process, the estimates of revenue were included in the approved
estimates contained in the Appropriation Bill, 2023 and the
Appropriation Act, 2023. As for the third sub-issue, the court held that
having found that the Bill was a money Bill, it could only be
introduced and considered in the National Assembly by dint of Article
109(5) of the Constitution. However, the

court was alive to this Court’s decision in Speaker of the Senate &
Another vs. Attorney-General & Another; Law Society of Kenya
& 2 Others (Amicus Curiae) (Advisory Opinion Reference 2 of
2013) [2013] KESC 7 (KLR) (Speaker of Senate), to the effect that it
is necessary for both Speakers to agree on the nature of any Bill prior
to its introduction in any House. Be that is it may, the court found that
the failure by the Speaker of the National Assembly to seek
concurrence of the Speaker of the Senate on the nature of the Bill
prior to its introduction in the National Assembly did not vitiate the
resultant Act as such concurrence is not a requirement under Article
114 of the Constitution.
[12]On public participation, the court found that there was real and
sufficient public and stakeholders’ participation, which the National
Assembly considered as evinced by the adoption of some of those
proposals in the Act. The court appreciated that there is no express
obligation on Parliament to give written reasons for rejecting or
approving any proposals received from the public. Nonetheless, the
court held that in order to enhance accountability and transparency, it
was desirable for the relevant committee of the National Assembly,
after conducting public participation, to give reasons for rejecting or
adopting proposals. Lastly, on the additional sections introduced by
the National Assembly after initial public participation, the court held
that Standing Order Nos. 132 & 133 of the National Assembly
Standing Orders permit amendments to be made to a Bill at the
Committee stage. Furthermore, the court held that it was bound by
Pevans East Africa Limited & Another vs. Chairman, Betting
Control & Licensing Board & 7 Others, Civil Appeal No. 11 of
2018; [2018] eKLR (Pevans Case), wherein the Court of Appeal
affirmed the position that Parliament is not precluded from effecting

amendments to a Bill during debate before passing the same.
[13] On the constitutionality of the amendments to the tax laws,

the High Court found that the provisions identified and cited did not
violate the Constitution; the matters raised related to tax policy and
administration, which are within the

competence of the legislature; and the said amendments reflected
policy choices of the National Government. Lastly, with respect to
Section 84 of the Act that introduced the affordable housing levy, the
court found that there was no comprehensive legal framework for the
said levy contrary to Articles 10, 201, 206 and 210 of the Constitution.
It also held that the imposition of the said levy against persons in
formal employment to the exclusion of non-formal income earners was
unjustified, unfair, discriminatory, and in violation of Articles 27 and
201(b)(i) of the Constitution.
[14] In the end, the High Court issued the following Orders:
i. 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 Financial Assets Act,
2011 and Sections 88 and 89 of the Finance Act,
2023 which repeal Section 21 of the Statutory
Instruments Act are all unconstitutional, null and
void.
ii. A declaratory order be and is hereby issued that

Section 84 of the Finance Act, 2023 violates Article
10(2)(b) and
(c) and 201 of the Constitution and is therefore
unconstitutional, null and void.
iii. An order of prohibition is hereby issued prohibiting

the respondents from charging, levying or in any
way collecting tax, otherwise known as the
‘Affordable Housing Levy’ on the basis of the
aforesaid Section 84 of the Finance Act, 2023.
iv. All other prayers in the consolidated petition not
specifically granted are hereby dismissed.

v. This being a public interest litigation, each party
shall bear its own costs of the petition.”
(b) At the Court of Appeal
[15] The High Court’s decision precipitated the filing of 7 appeals

before the Court of Appeal, with one appeal being withdrawn
thereafter. The remaining six appeals namely, Civil Appeal Nos.
E003, E016, E021, E049, E064 and E080 of 2024 were filed by,
the 3rd and 4th appellants, the 28th-37th respondents, the 1st, 2nd, 4th &
5th respondents, the 11th respondent, the 15th -19th & 22nd respondents,
and the 1st & 2nd appellants, respectively. Further, three cross appeals
were lodged by the 13th respondent, the 38th -49th respondents, and the
15th-19th & 22nd respondents, respectively. These appeals were
subsequently consolidated and Civil Appeal No. E003 of 2024 was
designated as the lead file
[16] Cumulatively, the consolidated appeal challenged the High

Court’s judgment on the grounds that the learned Judges erred by,
holding that the housing levy was discriminatory and unconstitutional;
finding that the Act contained some issues which were not related to a
money Bill; failing to strike down the entire Act after finding that it
contained non-money Bill issues; misinterpreting the nature and scope
of public participation; finding that it is ‘desirable’ that the relevant
committees in considering the memoranda presented during public
participation give reasons for adopting or rejecting proposals; finding
there was sufficient public participation prior to the enactment of the
additional sections introduced by the National Assembly, that is,
Sections 18, 21, 23, 24, 26, 32, 34, 38, 44, 47, 69, 72, 79, 80, 81, 82,
83, 85, 86, 100, 101 and 102 of the Act; failing to determine whether
the enactment of Section 47 (a)(xii) of the Act violated economic and

social rights and the right to health under Article 43 of the
Constitution; finding that it is necessary for both Speakers of
Parliament to agree on the nature of any Bill prior to its introduction
in any House; and misinterpreting Articles 109(5)

and 114(2) of the Constitution by holding that money Bills do not
require the mandatory concurrence of the two Speakers.
[17] Further, that the court erred by, declaring Sections 76, 78,
84, 87, 88 and 89 of the Act unconstitutional; ignoring the pleadings,
evidence, and submissions that ‘regressive taxes’ in the Act are unfair
because they disproportionately shift the tax burden to those with
lower incomes; holding that the challenged taxes were constitutional
as they were matters within the competence of the Legislature and
reflected the policy choices of the National Government; failing to find
that there was an exclusion of revenue estimates in the budget for the
FY 2023/2024, and such exclusion made the Appropriation Act 2023
void ab initio; and failing to determine the question of whether
Sections 52 and 63 of the Act that introduce mandatory and expensive
electronic tax systems is a threat or violates consumer economic
rights of small businesses under Article 46(1)(c).
[18] The Court of Appeal (M’inoti, Murgor & Mativo, JJ.A.) by a

judgment dated 31st July 2024, found that the fate of the consolidated
appeal depended on nine (9) issues. The first was whether the
challenge to the finding that Sections 84 (Affordable Housing Levy),
88 and 89 of the Act were unconstitutional was moot, and if so,
whether the said issue falls within the exceptions to the doctrine of
mootness. In determining this question, the Court of Appeal noted
that the Affordable Housing Bill, 2023 was enacted into law on 19th
March 2024 to cure the defects identified by the High Court in its
judgment, and that it addressed both the comprehensive legal
framework and the discrimination issues identified in the aforesaid
judgment. Similarly, the court observed that the Statutory
Instruments (Amendment) Bill, 2024 which was introduced in the
National Assembly addressed the inadequacies identified by the High

Court judgment in declaring Sections 88 and 89 of the Act
unconstitutional. The appellate court therefore held that there was no
live controversy before it requiring it to determine the question of the
unconstitutionality of Sections 84, 88 and 89 of the Act.

[19] On whether the Act contained extraneous provisions which did
not fall within a money Bill, the appellate court affirmed the High
Court’s decision that indeed Sections 76 and 78 thereof, which
amended Section 7 of the Kenya Roads Act, and Section 87 thereof
which amended Section 28 of the Unclaimed Financial Assets Act, are
unconstitutional as they ought not to have been in a money Bill.
[20] On whether the Act included provisions which were not in the
original Bill that was subjected to public participation, the appellate
court noted that the Act contained substantive provisions which were
not in the Bill. Further, that those provisions were neither subjected
to public participation nor to the First and Second Reading before the
National Assembly. The appellate court held that the instant case was
distinguishable from the Pevans Case on account of the totally new
provisions which found their way into the final enactment.
Accordingly, the court held that Sections 21, 23, 32, 34, 38, 44, 69,
72, 79, 80, 81, 82, 83, 85, 86, 100, 101 and 102 of the Act, which were
introduced post the initial public participation were unconstitutional
as they violated Articles 118 and 10 (2) of the Constitution.
[21] On whether the Senate ought to have been involved in the

enactment of the Act, the court upheld the High Court’s finding that
the Act was a money Bill save for containing some matters that did
not fall within the purview of a money Bill. However, the court went
on to hold that the foregoing did not change its basic character and
substance as a money Bill. Therefore, the court found that the lack of
concurrence prior to the introduction of the Bill in the National
Assembly did not vitiate the resultant Act since it is not a requirement
under Article 114 of the Constitution.
[22] On public participation, the appellate court while relying on

British American Tobacco Kenya, PLC (Formerly British
American Tobacco Kenya Limited) vs. Cabinet Secretary for the
Ministry of Health & 2 Others; Kenya Tobacco Control Alliance
and Another (Interested Parties); Mastermind Tobacco Kenya
Limited (the affected party), SC

Petition No. 5 of 2017; [2019] eKLR (BAT Case), found that the public
participation exercise conducted by the National Assembly allowed
diverse stakeholders an opportunity to present their views on the Bill
and was therefore sufficient. It further found that the constitutional
requirement for transparency and accountability imposes an
obligation upon State organs to inform the general public and
stakeholders why their views were not taken into account and why the
views of some of the stakeholders were preferred over others.
Accordingly, it held that Parliament, after conducting public
participation, was obligated to give reasons for rejecting or adopting
the proposals received, and failure to do so offended Article 10 (1) and
(2) (c) of the Constitution and rendered the process leading to the
enactment of the Act flawed.
[23] On whether estimates of revenue and expenditure were included

in the Appropriation Act, the appellate court observed that, as set out
in the National Assembly’s Hansard, the Cabinet Secretary, National
Treasury as at 15th June, 2023 had not presented the budget proposal,
yet the Bill had been introduced in the National Assembly and was at
the second reading stage. As a result, the court held that was in
violation of Article 220(1) (a) and 221 of the Constitution as read with
Sections 37, 39, and 40 of the Public Finance Management Act (PFM
Act) for the Bill to be approved before the budget proposal had been
presented by the Cabinet Secretary, National Treasury in the National
Assembly.
[24] On whether the High Court abdicated its jurisdiction by holding

that it cannot intervene on policy decisions, the appellate court held
that pursuant to Article 165(3) (d)(i) & (ii), the High Court has
jurisdiction to hear any question on the interpretation of the
Constitution, including the determination of the question whether or

not any law or anything said to be done under the authority of the
Constitution or any law is inconsistent with the Constitution.
Therefore, the court found that the aforementioned jurisdiction is
wide enough to cover a policy decision made by a state organ or
public body. In the circumstances, the appellate court faulted that the
High Court for misapprehending its jurisdiction and

abdicating its authority on to test the constitutionality of “anything”
including
policy decision said to infringe the Constitution.
[25]On whether the increased rates of taxation in the Act violated the
economic, social, and consumer rights guaranteed by Articles 43 and
46, the appellate court found that having already found that the
legislative process leading to the enactment of the Act was
fundamentally flawed and in violation of the Constitution, it would add
no value for it to determine this issue as the provisions challenged
under this question, namely Sections 30 to 38, 52 to 63 and 23 to 59
of the Act stood equally vitiated.
[26] Eventually, the Court of Appeal in its final orders dismissed, Civil
Appeals Nos. E003 and E080 of 2024 pertaining to Section 84 of
the Act (the Affordable Housing Levy) and Sections 88 and 89 thereof
(the Statutory Instruments Act) on the ground that the issues raised
therein had been caught up by the doctrine of mootness. Likewise, it
also dismissed the cross-appeals by the 15 th-19th & 22nd respondents
and the 38th-49th respondents and Civil Appeal No. E064 of 2024
for being devoid of merit, save to the extent that the High Court
misconstrued its jurisdiction under Article 165 (3) of the Constitution
when it held that it had no jurisdiction to intervene in policy matters.
[27]The appellate court allowed Civil Appeal No. E016 of 2024 and
the 13th respondent’s (LSK) cross-appeal and issued a declaration that
Sections 18, 21, 23, 24, 26, 32, 34, 38, 44, 47, 69, 72, 79, 80, 81, 82,
83, 85, 86, 100, 101, and 102 (a) of the Act which were introduced by
the National Assembly post the initial public participation were
unconstitutional for not having been subjected to fresh public
participation, and having been enacted in total violation of the
constitutionally laid down legislative path. The court declined the
prayer seeking refund of taxes collected from taxpayers under the
said provisions or any other unconstitutional provision of the Act. This
was because it found that such relief was not sought before the High
Court; and that legislative enactments enjoy presumption of
constitutionality up to the moment they are found to be
unconstitutional.

[28]The court also found that Civil Appeal No. E021 of 2021 was
merited and accordingly issued a declaration that the enactment of
the Act violated Articles 220
(1) (a) and 221 of the Constitution as read with Sections 37, 39A, and
40 of the PFM Act, which prescribe the budget making process,
thereby the same was fundamentally flawed and void ab initio. On the
other hand, Civil Appeal No. E049 of 2024 partially succeeded to
the extent that the appellate court found Parliament is obligated to
provide reasons for adopting or rejecting any proposals received from
members of the public during public participation process; and that
the failure to comply with the same rendered the entire Act
unconstitutional.
[29] The court also affirmed the High Court’s finding that Sections 76
and 78 of the of the Act which amended Section 7 of the Kenya Roads
Act, were unconstitutional, null and void. It also upheld the High
Court’s finding that concurrence of both houses in the enactment of
the Act was not a requirement under Article 114. Consequently,
having found that the process leading to the enactment of the Act was
fundamentally flawed, the appellate court held that Sections 30 to 38,
52 to 63 and 23 to 59 of the Act stood equally vitiated and
unconstitutional. No order as to costs was issued due to the public
interest nature of the matter.
(c) At the Supreme Court
[30] As indicated in the opening paragraph of this judgment, three

appeals were filed before this Court against the Court of Appeal’s
judgment (impugned judgment). These appeals were subsequently
consolidated.
[31] The consolidated appeal challenged the impugned judgment

on the grounds that the appellate court erred by finding that, the High
Court misconstrued and abdicated its mandate under Article 165(3)
by holding that it had no jurisdiction to intervene in policy matters;
Sections 21, 23, 24(c), 32, 34, 38, 44, 69, 72, 80, 81, 83, 85, 86, 87,
100, 101 and 102 of the Act were unconstitutional for not being
subjected to the entire legislative stages and public participation;
Parliament is

obligated to give reasons for rejecting or adopting the proposals
received after conducting public participation, and failure to do so
offends Article 10(1) and (2) of the Constitution; the estimates of
revenue were not included in the Appropriation Bill and the
Appropriation Act, 2023 and that the Act violated Articles 220(1)(a)
and 221 of the Constitution as read with Sections 37, 39A and 40 of
the PFM Act; the question of the constitutionality of affordable
housing levy which was introduced by Section 84 of the Act was moot;
Sections 76 and 78 of the Act which amended Section 7 of the Kenya
Roads Act, were unconstitutional; and that the entire Act was vitiated
and was therefore, unconstitutional.
[32]Cumulatively, the consolidated appeal seeks the following orders:
i. The consolidated appeal be allowed.
ii. The impugned decision of the Court of Appeal be set

aside in its entirety, and be substituted with an order
either setting aside part of the High Court judgment of
28th November, 2023 declaring Section 76, 77, 78, 84, 87,
88 and 89 of the Finance Act, 2023 unconstitutional,
and/or allowing Civil Appeal No. E003 of 2023.
iii. Costs of the consolidated appeal.
[33]Equally, two cross appeals were filed which faulted the impugned
judgment for, glossing over the pleadings and submissions that
“regressive taxes” contained in the Act are unfair because they
disproportionately shift the tax burden to those with lower incomes
contrary to Articles 10, 27, 26, 43, and 201 of the Constitution which
require tax measures to be socially just, fair, equitable, and
progressive; holding that the Constitution excluded money Bills from
the concurrence process under Article 110 (3) of the Constitution
contrary to this Court decision in the Speaker of the Senate; holding
that Senate was excluded from considering the Bill; dismissing the
38th -49th respondents’ cross appeal before the Court of Appeal which
challenged the constitutionality of Section 47 (a) (xii) of the Act
despite declaring Section 47 unconstitutional; and declining to order
the refund of all the

taxes collected under the impugned provisions of the Act despite
declaring the same unconstitutional.
[34]The cross appeals seek the following reliefs:
i. The cross appeals be hereby allowed.
ii. A declaration that Article 109(5) of the Constitution only

restricts the introduction (and not enactment) of money
Bills to the National Assembly.
iii. A declaration that the Act is unconstitutional for failure to

involve the Senate in its enactment.
iv. A declaration is issued that the Act violates Articles 10,

21(3), and 201 of the Constitution which require tax
measures to be socially just, fair, equitable, and
progressive.
v. An 0rder that all taxes collected by KRA from the date of

enactment of Act be refunded to the public.
vi. The consolidated appeals be dismissed.
vii. An order for costs.
[35]In opposing the appeal, Eliud Karanja Matindi (the 2 nd

respondent) lodged a preliminary objection on this Court’s
jurisdiction. The tenor of the objection was that SC Petitions Nos.
E032 & E033 of 2024 did not specify under which limb of this
Court’s appellate jurisdiction, as delineated by Article 163(4), they are
anchored on. Therefore, he contended that this Court lacked
jurisdiction to entertain the said appeals.

C. PARTIES’ SUBMISSIONS
(i) Appellants’ Submissions
[36] Beginning with the preliminary objection, the 3 rd, 4th and 5th
appellants submitted that it was evident the appeals were filed under
Article 163(4)(a) of the Constitution. Furthermore, that constitutional
questions in the said appeals were not being raised for the first time
but were also considered and determined in the superior courts
below. Nonetheless, the 5th appellant contended that its appeal is
brought under Article 163(4)(a) though erroneously indicated as
163(4) (b). On their part, the 3rd and 4th appellants asserted that public
interest tilts in favour of the Court determining all substantive
questions relying on our decision in Sonko vs. County Assembly of
Nairobi City & 11 Others, SC Petition No. 11 (E008) of 2022; [2022]
KESC 76 (KLR).
[37]The 1st and 2nd appellants on their part argued that it is within the
authority of the Legislature to enact legislation governing the manner
in which a particular form of tax is administered, and that the High
Court is not the appropriate forum to address any alleged
inadequacies of such taxes. They maintained that the High Court
correctly found that nothing had been placed before it to demonstrate
how the amendments to the various tax laws violated the Constitution.
Consequently, the High Court could not in the circumstances be
faulted for not interfering with policy decisions on the said
amendments in line with its decision in Kenya Small Scale Farmers
Forum & 6 Others vs. Republic of Kenya & 2 Others, HC Petition
No. 1174 of 2007; [2013] eKLR. According to the 1st and 2nd
appellants, the Court of Appeal failed to take into account the full
context leading the High Court to arrive at its conclusion on the
extent of judicial intervention in policy decisions. As a result, these
appellants averred that the Court of Appeal erred in its interpretation
of the scope of judicial intervention in public policy matters in light of
the doctrine of political question.
[38] On public participation, the appellants posited that under Section

39A of the PFM Act, the National Assembly has only 61 days to
consider and pass a Finance

Bill, with or without amendments. Therefore, in determining whether
the public participation undertaken for a Finance Bill is adequate,
courts should consider this factor and bear in mind the ratio decidendi
in BAT Case wherein this Court held that the adequacy of public
participation has to be considered on a case-by-case basis.
Consequently, they argued that it is unreasonable to require the
National Assembly to subject any provisions introduced in a Finance
Bill after public participation to fresh public participation, and to give
reasons for adopting or rejecting each memoranda received. In
particular, taking into account that with respect to the Bill, the
National Assembly received over 1,000 memoranda which had to be
considered within the limited period. In their view, such requirements
would render it impossible for the National Assembly to pass a
Finance Bill within the constitutional and statutory timelines. Besides,
they added that the Court of Appeal failed to consider the contents of
the supplementary affidavit sworn by the Clerk of the National
Assembly on 17th August, 2023 which contained the proposals of the
public and stakeholders as well as the report of the Committee
demonstrating the reasons for acceptance and rejection of the views
submitted by the public.
[39]As far as the appellants were concerned, public participation

undertaken with respect to the Bill was adequate. Further, that the
Pevans Case affirmed the position that Parliament has the power
during the legislative process to make changes to a Bill post public
participation. It was further submitted that the Bill was a culmination
of a long, exhaustive and thorough multi-stakeholder process that
ensured involvement from the grassroots level to the national
government level; and that the National Treasury through the Budget
Calendar for the FY 2023/2024 provided repeated instances for

members of the public to provide feedback on the fiscal policy prior to
and during the drafting of the Bill. Moreover, the appellants asserted
that the additional sections in the Act were minor as they did not
introduce new tax, create new rights or confer powers to any parties.
They urged that the said amendments simply varied applicable tax
rates and/or reclassified items that had already been proposed and
put to members of the public

for their comments and responses. To that extent, the appellants
posited that South Africa Iron and Steel Institute Others vs.
Speaker of the National Assembly & Others [2023] ZACC 18 is
distinguishable from the matter at hand.
[40] Furthermore, the appellants claimed that the Court of Appeal

failed to take into account the further affidavit of Prof. Njuguna S.
Ndung’u sworn on 17th August, 2023, the tenor of which is that
revenue estimates were contained in the budget estimates for the FY
2023/2024. Accordingly, they contended that the High Court had
arrived at the correct conclusion that the said estimates had been
provided. It is urged that the Court of Appeal read Article 221(1) in
isolation thereby arriving at the wrong conclusion that revenue
estimates form part of the Appropriation Bill. Besides, the 5 th
appellant contended that the Court of Appeal erred in finding that the
alleged shortcomings of the Appropriation Bill/Act affected the
constitutionality of the Bill since the two are mutually exclusive.
[41]The appellants averred that while courts can intervene in policy

matters to ensure compliance with the Constitution, they are
precluded from usurping the policy-making role of the legislative and
executive branches. In that regard, they cited Waweru & 3 Others
(Suing as Official of Kitengela Bar Owners Association) &
Another vs. National Assembly & 2 Others; Institute of Certified
Public Accountants of Kenya (ICPAK) & 2 Others (Interested
Parties), (Constitutional Petition No. E005 & E001 (Consolidated) of
2021) [2021] KEHC 9748 (KLR) and the Pevans Case. In their view,
the Court of Appeal substituted the policy decision by the Executive
and Legislature with its own.
[42] It was urged, in addition, that notwithstanding the enactment of

the Affordable Housing Act, the questions of law raised with respect
to the findings on the said levy which was introduced in the Act in
issue requires this Court’s consideration. More so, due to the
implication that the High Court’s finding would have on future
legislations.

[43] It was the appellants’ other position that the Court of Appeal
failed to consider the impact or consequence of declaring the entire
Act unconstitutional on the existing financial framework. Moreover,
the court failed to issue an appropriate remedy, thereby creating
uncertainty with far-reaching implications on the financial and
legislative stability in the country. The case of the Independent
Electoral and Boundaries Commission (IEBC) vs. National
Super Alliance (NASA) Kenya & 6 Others, Civil Appeal No. 224 of
2017; [2017] eKLR was cited for the proposition that courts must
always consider public interest and balance all other factors when
crafting a remedy.
In support of the appeal
(ii) 52nd Respondent’s Submissions

[44]The 52nd respondent asserted that the Petition No. E032 and
E033 of 2024 are properly before Court as it is discernable that they
are brought under Article 163(4)(a) of the Constitution. The said
respondent also made reference to Article 159 of the Constitution to
urge that this Court ought to administer justice without undue regard to
procedural technicalities.
[45]The 52nd respondent further stated that there is no statute, policy or

regulations that govern the manner in which public participation should
be conducted. Nevertheless, it maintained that public participation with
regard to the Act was sufficient pursuant to the prevailing framework.
According to this respondent, should this Court uphold the appellate
court’s decision, it will undermine the independence of the Legislature.
It postulated that Parliament ought to be allowed to determine how best
to carry out its activities, including public participation and that, the
new provisions incorporated into the Act after public participation were
in response to the views/proposals raised during public participation,
and therefore, the said provisions are not unconstitutional. To buttress
the argument, it relies on the Pevans Case.
[46]In conclusion, the 52nd respondent claimed that the Act contains
provisions that have a direct positive impact on citizens, and will
contribute to lowering the cost of

living. It also urged that in public interest, in the event the Court finds
any flaws with the Act, it should invoke its inherent powers to craft
appropriate reliefs.
In opposition to the appeal.
(iii) 1st Respondent’s Submissions
[47]The 1st respondent supported the Court of Appeal’s finding on the

High Court’s jurisdiction on policy matters. According to him, the
requirement that any new amendments introduced into a Bill should be
subjected to fresh public participation will not impede the Parliament’s
legislative role. Likewise, he concurred with the Court of Appeal’s
finding that the issue(s) on the affordable housing levy was moot. He
stated that equally, the said issue was moot both before the Court of
Appeal and this Court.
[48] It was his position that the Appropriation Act, 2023 constitutes a
national budget which mandates inclusion of both estimates for revenue
and expenditure as stipulated under Article 220 (1)(a) of the
Constitution. He claimed that when the document titled ‘2023/2024
Estimates of Revenue, Loans and Grants’ was tabled before the
National Assembly together with the estimates of expenditure, only the
latter estimates were considered, approved and enacted into law. He
added that the estimates of revenue were neither processed nor
mentioned and made reference to the ‘Report of the Budget and
Appropriation Committee on the Estimates of Revenue and
Expenditure’ to contend that it did not contain any comments or
references regarding estimates of revenue, but exclusively addressed
the estimates of expenditure, contrary to Articles 221(3), (4) & (5) of the
Constitution, as read together with Section 39(1) & (2) of the PFM Act.
He argued that failure by the National Assembly to consider and enact

the estimates of revenue into law vide the Appropriation Act, 2023
voided the entire 2023/2024 budget ab initio. Therefore, given that the
Appropriation Act, 2023 did not include approved estimates of revenue
there was no foundational basis for the Finance Act as the latter, in his
view, cannot exist independently. In the circumstances, he postulated,
the Act cannot purport to collect funds that have not been legally
approved through inclusion in the

Appropriation Act, 2023. As a result, he claimed that both the
Appropriation and Finance Acts, 2023 are void.
[49] He also maintained that the declaration of the entire Act as

unconstitutional cannot cripple the government revenue collection
through taxation as the said Act does not substitute or replace the tax
statutes in force. In that regard, he stated that the prevailing situation in
Kenya following the withdrawal of the Finance Bill, 2024 and the
declaration of the Act in issue as unconstitutional meant that the
Finance Act, 2022 remains in force.
(iv) 2nd Respondent’s Submissions
[50] In reiterating his preliminary objection, the 2nd respondent

referred this Court to our decision in Daniel Kimani Njihia vs.
Francis Mwangi Kimani & Another, SC Applic No. 3 of 2014;
[2015] eKLR with respect to SC Petition No. E031 of 2024, and
argued that, despite invoking the appellate jurisdiction under which it
is moving this Court, it had failed to demonstrate how the Court of
Appeal misinterpreted or misapplied specific provisions of the
Constitution. Accordingly, he asked this Court to dismiss the
consolidated appeal for lack of jurisdiction.
[51] He also opposed the consolidated appeal on more or less

similar grounds as the 1st respondent.
(v) The 3rd, 4th, 5th, 6th, 11th, 13th, 14th, 15th -19th, 20th,
21st & 22nd Respondents’ Submissions
[52] Similarly, the 3rd, 4th, 5th, 6th, 11th, 13th, 14th, 20th, 21st & 22nd
respondents opposed the consolidated appeal on substantially the same
grounds as the 1st and 2nd respondents save that the 3rd respondent
submitted that the additional sections introduced in the Act by the
National Assembly were not strictly amendments. Rather, that they were
wholly new independent clauses which were unrelated to the original
clauses in the Bill as originally published and subjected to the First
and

Second Reading, and the public participation process. The 4 th
respondent added that once a statute is found to contravene the
Constitution, the entire statute is invalidated, and the court’s role is not
to partially save it. Further, that a court is no way obligated to suspend a
declaration of unconstitutionality of a statute as suggested by the
appellants.
[53] The 11th respondent called upon this Court to invoke Rule 28(5)
of the Supreme Court Rules and review the principles of public
participation it had set out in the BAT Case, and adopt the Court of
Appeal decision to the effect that Parliament and other state agencies
are obligated to give reasons for rejecting or adopting the proposals.
In support of that proposition, he argued that Kenyans as the donors
of sovereign power are expected to have a bigger say in the legislative
process and their views ought to have been captured in the final
legislation.
[54] The 11th respondent also submitted that the Court of Appeal was
correct to hold that Sections 52 and 63 of the Act, which amended the
Tax Procedure Act by inserting Section 23A to introduce a mandatory
electronic tax system (eTIMS) are unconstitutional. He explained that
the said provisions required persons carrying on business to issue
electronic invoices through the system and maintain a record of
stocks therein, and that non-compliance would attract a penalty of
Ksh.1,000,000/-. He took the position that small businesses, especially
those in remote or upcountry areas cannot afford to meet the penalty
or procure computers and internet services. This, he argued, would
discourage inclusivity and sustainable economic growth in the harsh
economic times
(vi) The 24th – 27th Respondents’ Submissions

[55] The above respondents averred that they appeared before the
National Assembly during public participation and gave their comments
on Section 26 of the Act which amended the Income Tax Act by
increasing individual tax on income. They implored the Court to examine
the objects, purpose and effect of Section 26 of Act to determine
whether it conforms with the Constitution. They also urged that the
increase of the rate of taxation has an effect of infringing on the right to
human dignity, right not to

be held in servitude, right to property, right to fair labour practices and
the economic rights of employees. In that regard, they claimed that the
increment did not take into account the affected employees’ financial
obligations, which would potentially require restructuring of amounts
due to third parties, placing employers in a fix. To buttress that line of
argument Kenya Revenue Authority vs. Waweru & 3 Others;
Institute of Certified Public Accountants & 2 Others (Interested
Parties) Civil Appeal No. E591 of 2021 [2022] KECA 1306 (KLR) was
cited. Likewise, they asserted that Section 26 of the Act was
discriminatory and in contravention of Article 27 of the Constitution in
so far as it varies new individual tax rates for earnings between Kshs.
6,000,000 to Kshs. 9,000,000 to 32.5% and income above Kshs.
9,000,000 at the rate of 35%.
Cross- Appeals
(vii) The 15th -19th & 22nd Respondents’ Submissions
[56] The 15th - 19th and 22nd respondents contended that the tax
measures in the Act were enacted in violation of firstly, Article 2(3) of
the United Nations Declaration on the Right to Development, 1986
which requires States to promote the adoption of economic and social
measures that improve the wellbeing of the people. Secondly, Article
8 of the Constitution which requires the State to take appropriate
economic and social reforms to eradicate all social injustices. Thirdly,
the Guiding Principles on Extreme Poverty and Human Rights, 2012
(par. 53) which provide that fiscal policies on revenue collection
should adhere to equality and non-discrimination. It was also urged
that that the tax measures in the Act are regressive as they tax low-
income earners more than high-income earners, and go against the
doctrine of non-retrogression which prohibits States from taking
actions that reduce or limit socio-economic rights that are already
being enjoyed. The respondents claimed that the said tax measures
also called for increase of taxes on fuel and food during an economic
slump. To support their argument, they cited Navtej Singh Johar vs.
Union of India Ministry of Law and Justice, AIR 2018 Supreme
Court 4321. and Gurcharan Singh vs. Ministry of

Finance (Department of Revenue), Government of India, W.P.
(C) 5149/2021, CM No. 16554/2021. Accordingly, they submitted that
the aforementioned foreign jurisprudence speaks to the fact that
courts can intervene in matters of tax policies where they violate the
Bill of Rights and the principles of good governance.
[57]It was their other position that the Court of Appeal erred in
holding that a money Bill does not require the concurrence of the
Speakers of both houses prior to its enactment. Besides, they urged
that some of the provisions of the Act touched on county functions and
powers. For instance, they cited Section 86 that amended Section 31
of the Alcoholic Drinks Control Act and Section 84 introducing the
housing levy. It was asserted that Article 109(3) as read with Article
110(1)(a) of the Constitution is the ultimate determinant of which Bills
must be presented for concurrence by the Speakers of both Houses to
determine whether a Bill affects the functions and powers of county
governments. Towards that end, it was argued that taxation affects
both the National and County Governments and therefore, any Bill on
taxation must be subjected to the concurrence of both levels of
government.
(viii) The 38th - 49th Respondents’ Submissions
[58] The said respondents took issue with the Court of Appeal
dismissing their cross-appeal. They urged that the said cross-appeal
had challenged the constitutionality of Section 47 (a) (xii) of the Act,
and the same court had found the entire Section 47 as
unconstitutional. Therefore, they averred that the dismissal was a
complete departure from the ratio decidendi of the impugned
judgment.
[59] Pertaining to the refund of taxes collected under the Act, the
respondents maintained that it is the natural consequence of the
declaration of the Act as unconstitutional. To support their case, they
cited Norton vs. Shelby County
118 U.S. 425 91186) and Benjamin Leonard Mcfoy vs. United
Africa Company Limited [1962] ALL ER 1169 to urge that an
unconstitutional action is inoperative as though it had never been
taken. Furthermore, they claimed that

every action, including collection of taxes, founded on an illegality or
unconstitutionality suffers the same fate from the date of collection as
it was unauthorized in the first place. As to whether that issue was
raised at the High Court, the respondents submitted that the issue of
refund arose out of the necessary implication of the declaration of the
Act as unconstitutional by the Court of Appeal.
In support of the Cross-Appeals
(ix) The 20th & 21st Respondents’ Submissions
[60] The 20th and 21st respondents supported the 15th -19th and 22nd
respondents’
cross appeal on similar grounds as the said respondents.
In opposition to the Cross Appeals
(x) The Appellants’ Submissions
[61]In opposing the cross appeal, the appellants reiterated their

submissions in support of the consolidated appeal. However, the 5th
appellant added that the prayer for refund of taxes was never
pleaded, canvassed or determined in the High Court. In any event, the
said appellant maintained that by virtue of the presumption of
constitutionality of statutes any revenue which was collected pursuant
to the Act is deemed to have been properly collected. In that regard,
reference was made to Ndyanabo vs. Attorney General [2001] EA
495.
(xi) Amicus Curiae Submissions
[62] By a ruling dated 30th August, 2024 Gautam Bhatia was admitted
to these proceedings as an amicus curiae. The amicus curiae’s brief
touched on two issues: whether the national value of public
participation entails an obligation upon State organs to give reasons
in the event that they choose to reject the suggestions that have
emanated from the public; and if, after one round of public
participation, a Bill is substantively amended by the National
Assembly, whether there is an obligation to subject the amended
provisions and/or new provisions

to further public participation. The amicus wholly agreed with the
determination of the Court of Appeal on those issues.
[63] He submitted that more recent Constitutions have moved away

from the assumption that the role of the people is limited to
periodically choosing their representatives and authorizing them to
act on their behalf. He argued that there must be forms of
accountability and participation that are direct and continuing. In
other words, that the people must be involved in the process of
constitutional change, law making, and administrative action. He
highlighted that the architecture of power created by the Pre- 2010
Constitution made the effective practice of plural politics impossible.
He added that public participation was one of the fundamental
demands at the heart of the movement for a new constitutional
settlement, and in particular, the Draft Constitution of Kenya, 2004
(Bomas Draft), contained an entire chapter on public participation. He
pointed out that one of the reasons for rejection of the Draft
Constitution of Kenya, 2005 (Wako Draft) was the exclusion of public
participation, and an attempt to impose a top- down Constitution on
the People.
[64]The amicus stated that this Court has always been guided by the
overarching principle that if the right to public participation means
anything it is that the People must be treated as active agents in
shaping decisions about public power, and not as passive receptacles,
whose role is simply to affirm decisions that have already been taken
by public authorities. He submitted that in the Attorney- General &
2 Others vs. Ndii & 79 Others; Dixon & 7 Others (Amicus
Curiae) (Petition 12, 11 & 13 of 2021 (Consolidated)) [2022] KESC 8
(KLR) (the BBI Judgment), it is that principle that guided the Court
in interpreting the scope and ambit of Article 257 of the Constitution.
[65] He enumerated the following elements as doctrinal signposts for
public participation: the Constitution’s commitment to representative
democracy means that the results of public participation are not
binding upon the representatives; however, that being the case, it
becomes particularly easy for legislators to

reduce the public participation requirement to a cipher, by complying
with the formal processes for public participation, but – in substance –
ignoring the public’s views entirely; it is therefore crucial for there to
exist certain built-in procedural and substantive safeguards that
ensure meaningful engagement; and these safeguards ought not to be
of such a nature that the legislative process is entirely stymied, or
brought to a near-complete halt.
[66] On the obligation to give reasons, the amicus asserted that this is
a vital safeguard that ensures that public participation is meaningful.
He added that whereas views from public participation cannot be
binding on the Legislature, the challenge is to ensure that the
Legislature meaningfully engages with people’s views, and does not
simply record them as a pro-forma exercise, while ignoring them in
substance. Further, that the obligation requires a form of public
justification, which he stated carries crucial benefits that include:
mitigating power imbalance between the representatives and the
people, and provides a barrier against arbitrary or mala fide decision-
making; increases transparency and accountability in decision-
making, which is the purpose of the public participation guarantee;
and ensures that the people have been reasonably engaged, and not
ignored. He equated the obligation to give reasons as the legislative
equivalent of the doctrine of meaningful engagement applied in
eviction cases and the doctrine of proportionality used to assess the
constitutionality of rights-infringing legislation. The amicus submitted
that the obligation to give reasons is part of the “culture of
justification,” which is an integral element of transformative
constitutionalism.
[67]He averred that trivial or clerical amendments do not need to be

put through another round of public participation; nor do

amendments that have been made in response to the results of public
participation. In conclusion, he submitted that there is an obligation
upon State organs to give reasons for rejecting the results of a public
participation process and this obligation need not extend to every
single comment received. He however noted that the requisite State
organ should be free

to synthesize different questions, and to respond thematically. He also
posited that if a bill has received substantive alterations, the amended
portions must have a second round of public participation before the
publication of the Bill.
D. ISSUES FOR DETERMINATION
[68] Having considered the pleadings, the impugned judgment, and

the parties’ respective submissions, this Court framed the following
nine issues as arising for its determination:
i. Whether the Court has jurisdiction to hear and determine

SC Appeals Nos. E032 and E033 of 2024.
ii. Whether the Finance Act, 2023 was subject to the

concurrence process under Article 110(3) of the
Constitution.
iii. Whether fresh public participation should be undertaken

where Parliament amends provisions of a Bill or
introduces new provisions in a Bill after initial public
participation.
iv. Whether Parliament has an obligation, upon conclusion of

the public participation exercise, to provide detailed
reasons for accepting or rejecting views, and whether
failure to give reasons vitiates the legislative process and
invalidates the legislation passed.
v. Whether the Appropriation Act, 2023 contained the

estimates of revenue.
vi. Whether the question of the validity of Section 84 of the

Finance Act, 2023 (Affordable Housing Levy) is moot.
vii. Whether a court has jurisdiction to test the legality of
policy positions taken by the Executive and Parliament in
the legislative

process; and if so, whether the impugned sections of the
Finance Act relating to various tax legislations are
unconstitutional.
viii. What considerations should a Court take into account in

declaring a statute as unconstitutional, and what
consequential orders ought a court issue upon making a
declaration of unconstitutionality of a statute or parts
thereof?
ix. What remedies should issue?
E. ANALYSIS
i. Whether the Court has jurisdiction to hear and

determine SC Appeals Nos. E032 and E033 of 2024
[69] As a matter of practice, this Court has to independently satisfy

itself that any appeal brought pursuant to the Court’s jurisdiction
under Article 163(4) of the Constitution or under any other provision
is properly before it. However, in the instant case, the jurisdiction of
this Court to hear and determine SC Petition Nos. E032 & E033 of
2024 has been questioned by the 2nd respondent who raised a
preliminary objection. The gist of the objection is that the appeals did
not specify which limb of this Court’s appellate jurisdiction, as
delineated by Article 163(4), they are anchored on. On their part, the
3rd, 4th and 5th appellants admitted the omission but nonetheless,
contended that it was evident from the holistic reading of the appeals
that they were filed under Article 163(4)(a) of the Constitution, and
that the constitutional questions therein were considered in the
superior courts below. In addition, it was argued that the two appeals
in issue had since been consolidated with Petition No. E031 of

2024.
[70]Starting with the last argument on consolidation, it goes without

saying that an order consolidating cases before a court, such as in this
case, is purely a procedural issue. This Court highlighted the
purpose of consolidation in Law

Society of Kenya vs. Centre for Human Rights &
Democracy & 12 Others, SC Petition No 14 of 2013; [2014] eKLR,
declaring that:
“The essence of consolidation is to facilitate the

efficient and expeditious disposal of disputes and to
provide a framework for a fair and impartial
dispensation of justice to the parties.”
Consolidation is meant to avoid multiplicity of suits by enabling a

court to dispose at the same time matters that are related and arise
from the same set of facts or subject matter, raise similar issues of
law, involve the same parties, and ensue from the same judgment. In
no way can such a procedural step be understood to be sanitizing
anything in the consolidated matters that would have otherwise been
found to be an anomaly in the absence of such a consolidation. As
such, the argument by the 3rd, 4th and 5th appellants that this Court
has jurisdiction to determine their appeals simply because they are
consolidated with Petition No. E031 of 2024 in which this Court’s
jurisdiction has properly been invoked is untenable.
[71] Be that as it may, we confirm from the record that both SC

Petition No. E033 and E034 of 2024 are expressed to be brought
pursuant to inter alia, “Article 163(4)(a) & (b)” of the Constitution.
The two limbs of the appellate jurisdiction of this Court under Article
163(4)(a) and (b) of the Constitution are distinct, either ‘as of right’ on
the constitutional issues; or on ‘matters of general public importance’,
respectively. Consequently, a litigant is under strict obligation to
categorize his or her case, indicating the constitutional or legal
category under which he or she is moving the Court. Moreover, in a
litany of cases, we have repeatedly cautioned advocates and litigants
alike, who desire to come to this Court, that they must specifically
invoke and state the correct provisions. Failure by a party to bring
their appeal within the jurisdictional ambit of either limb has been
met with the fate of dismissal. See Suleiman Mwamlole Warrakah
& 2 Others vs. Mbwana & 5 Others (Petition 12 of 2018) [2018]
KESC 76 (KLR)

and Daniel Kimani Njihia vs. Francis Mwangi Kimani & Another,
SC Application No. 3 of 2014; [2015] eKLR.
[72] This Court has consistently been emphatic regarding this

jurisdictional prerequisite for various reasons; first, to avoid leaving it
to conjecture for the Court to wander in the maze of pleadings to
ascertain by way of elimination which of the two limbs of Article
163(4) a litigant intends to invoke. See Ibren vs. Judges and
Magistrates Vetting Board & 2 Others (Petition 19 of 2018) [2018]
KESC 75 (KLR). Second, the applicable considerations and principles
for each of the limbs are different. See Fahim Yasin Twaha vs.
Timamy Issa Abdalla & 2 Others, SC Application No. 35 of 2014;
[2015] eKLR. Finally, the rules of pleadings dictate that parties
succinctly define the issues for determination to avoid the element of
surprise to the other parties. See Sonko vs. County Assembly of
Nairobi City & 11 Others (supra).
[73] However, taking into account the two appeals in issue, we

note that they raise constitutional questions that arose and were
considered and determined by the superior courts below. Specifically,
the grounds raised in Petition No. E032 of 2024 involve the
interpretation of the mandate of the High Court under Article 165(3)
of the Constitution; whether the sections of the Act that were
introduced post-public participation were enacted in a manner that
violated Articles 10(1) &
(2)and 118 of the Constitution; and whether the Act violated Articles
220(1)(a) and 221 of the Constitution. Equally, Petition No. E033 of
2024 raises grounds involving the interpretation of whether the
provisions which were introduced to the Act post-public participation
contravened Articles 10(2) and 118 of the Constitution, and whether
there was a breach of Articles 220 and 221 of the Constitution in the
enactment of the Act. All these questions were the subject of judicial
determination before the superior courts below. Moreover, we find
that the said questions are of grave public interest with far-reaching
ramifications under our constitutional framework.

[74] In this regard, the decision in Ibren vs. Judges and
Magistrates Vetting Board & 2 Others (supra) is distinguishable.
Therein, not only had the appellant failed to properly invoke this
Court’s jurisdiction but also there were clearly no questions of
constitutional interpretation or application before the superior courts
below. However, the circumstances of the instant case, are similar to
Karua vs. Independent Electoral and Boundaries Commission &
3 Others (Petition 3 of 2019) [2019] KESC 26 (KLR) wherein despite
the appellant failing to properly invoke this Court’s jurisdiction, it was
demonstrated, without the Court wandering in the maze of pleadings,
or relying on conjecture that the appeal raised issues of constitutional
interpretation. In the instant case, the appellants have demonstrated
as directed by this Court in Lawrence Nduttu & 6000 Others vs.
Kenya Breweries Ltd. & Another, SC Petition No. 3 of 2012; [2012]
eKLR, how their respective appeals involved application or
interpretation of the Constitution and the manner in which the Court
of Appeal erred in determining those very questions. To that extent
therefore, it is our finding that this Court has jurisdiction to determine
the two appeals under Article 163(4)(a) of the Constitution. However,
we must emphasize that this Court abhors inelegant drafting and will
not hesitate to strike out, as it has done before, pleadings that makes
it difficult to discern which limb of Article 163(4) is being invoked or
where there are obvious and glaring errors made in a pleading.
ii. Whether the Finance Act, 2023 was subject to the

concurrence process under Article 110(3) of the
Constitution
[75] Both the High Court and Court of Appeal unanimously found
that the Finance Act, 2023 is a money Bill, and therefore, not subject
to the concurrence process under Article 110 (3) of the Constitution.
In particular, the Court of Appeal pronounced itself as follows:
“… application of Article 110 (3) of the Constitution to

Bills concerning counties and the exclusion of the
same provision from application to Bills concerning
the National

Government rendered Article 110(3) of the
Constitution applicable only to Bills concerning
counties, and that it is to these Bills alone that the
concurrence process would be subjected.”
[76] Without repeating the parties’ submissions, the appellants

agreed with the superior courts below on this aspect. On their part,
the respondents opined that there is a distinction between
introduction and consideration of Bills in Parliament. The respondents
also argued that all Bills, including the Finance Bill must undergo the
concurrence process. Besides, they reiterated that the Bill contained
clauses concerning County Government and the Senate should have
been involved in its enactment. As a result, we find that two issues
arise from the parties’ arguments, to wit, whether the Bill was a
money Bill, and whether the same was subjected to the concurrence
process.
[77] On whether the Bill is a money Bill, we are of the view that
this calls for the interpretation of the Bill to discern the intention of
the Legislature. This further entails consideration of the words
employed by the Legislature, as appreciated in Law Society of
Kenya vs. Attorney General & Another, SC Petition No. 4 of 2019,
[2019] KESC 16 (KLR), and the context thereof as aptly set out in the
Supreme Court of India’s often-cited case of Reserve Bank of India
vs. Peerless General Finance and Investment Co. Ltd. and
Others (1987) 1 SCC 424.
[78]The preamble to the Act provides that, ‘it is an Act of Parliament

to amend the laws relating to various taxes and duties; and for
matters incidental thereto’. The primary objective of the Act is to
amend provisions of statutes which relate to various taxes and duties.

Additionally, our perusal of the Act reveals that it introduced a raft of
tax measures, amendments and repeal of various provisions of
existing tax legislations, variation and repeal of charges to public
funds, investment and appropriation of public funds, and
administrative procedures in relation to raising and imposition of
taxes. Consequently, we concur with and

affirm the finding by the superior courts below that the substratum of
the Bill is in line with Article 114(3) of the Constitution, and therefore,
it is a money Bill. Equally, we concur with the superior courts below
that notwithstanding the fact that the Bill contained extraneous
matters which fell outside the parameters of a money Bill, that by
itself did not change its character as a money Bill. Further, we agree
with the determination of the Court of Appeal that the inclusion of a
non- fiscal matter in a money Bill is only permissible if it is incidental
or ancillary to a matter specified in sub-clauses 114 (3)(a) to (d). It is
not enough for such a matter to be merely subordinate or remotely
related but there must be a clear nexus to the main subject.
[79]Having found that the Bill is a money Bill, the next issue is
whether it was subjected to the concurrence process. Article 110(3)
explicitly demarcates the concurrence process with respect to Bills as
herein under –
“Before either House considers a Bill, the Speakers of the

National Assembly and Senate shall jointly resolve any
question as to whether it is a Bill concerning counties and, if
it is, whether it is a special or an ordinary Bill.”
[80] We have taken note of the communication between the Speaker

of the National Assembly, Hon. Moses Wetangula, and the Speaker of
the Senate, Hon. Amason Kingi. By a letter dated 2 nd May, 2023 the
Speaker of the National Assembly informed the Speaker of the Senate
of the publication of the Bill, and the fact that it did not concern
County Government. In response, vide a letter dated 3rd May, 2023 the
Speaker of the Senate concurred that the Bill does not concern
County Government. We are also alive to the fact that the Speaker of
the Senate later on wrote a letter dated 15 th June, 2023 contending

that the Bill was a Bill concerning County Government, thereby
reversing his position expressed in the earlier letter. In turn, the
Speaker of the National Assembly by a letter dated 20th June, 2023
reminded the Speaker of the Senate of the previous correspondence
exchanged between them which jointly resolved that the Bill does not
concern

County Government. Subsequently, the Speaker of the Senate wrote a
letter dated 21st June 2023, withdrawing and repudiating his letter
dated 15th June, 2023. By the very same letter, the Speaker of the
Senate reiterated that the Bill does not concern County Government.
While it is not clear why the Speaker of Senate had at one point a
change of heart, we find that the summation of the correspondence
between the two Speakers clearly and explicitly demonstrate that
there was concurrence that the Bill does not concern County
Government.
[81] Having pronounced ourselves as herein above, the 15 th-19th &

22nd respondents’ cross appeal as far as the issue of lack of
concurrence with respect to the Bill fails.
iii. Whether fresh public participation should be

undertaken where Parliament amends provisions of a
Bill or introduces new provisions in a Bill after initial
public participation
[82] The Constitution promotes the ideals of self-government and self-

rule, as reflected in Article 4(2), which establishes Kenya as a multi-
party democracy. Article 1(1) declares that the sovereign power
belongs to the people of Kenya; and that that power can be exercised
only in accordance with the Constitution. Article 1(2) further
proclaims that the people may exercise their sovereign power either
directly or indirectly through their democratically elected
representatives. In its direct democracy aspect, the Constitution
provides for citizens to participate in referenda on certain
constitutional amendments as outlined in Article 255. Additionally, it
promotes a participatory approach to governance, with Article 10(2)
(a) identifying ‘democracy and participation of people’ as national

values and principles of governance. This is reinforced by specific
constitutional obligations, such as the duty imposed on Parliament
under Article 118(1)(b) to facilitate public participation and
involvement in its legislative and other business.
[83] Conversely, the Constitution also provides for indirect

democracy. In that regard, Article 1(3) states that sovereign power
is delegated to specified State

organs, including Parliament and the legislative assemblies of County
Government. Moreover, Article 94(1) of the Constitution provides that
“[t]he legislative authority of the Republic is derived from the people
and, at the national level, is vested in and exercised by Parliament”.
This speaks to the representative aspect of democracy, which grants
elected representatives the discretion to make legislative decisions on
behalf of the people they represent with the legislative discretion
being balanced by the Constitution’s commitment to participatory
governance.
[84] This constitutional framework acknowledges that, while the

complexities of a modern state require decision-making by
representatives, these processes must involve meaningful public
participation to achieve democratic legitimacy. These two facets of
our democracy should not be seen as conflicting with each other but
as complementary. By integrating representative and participatory
democracy, the Constitution upholds the principle that citizens have a
right to participate in governance and that decisions should be rooted
in public reasoning and deliberation. This approach ensures that the
government remains responsive to its people, mandating the active
involvement of citizens in governance processes.
[85] Since the promulgation of the 2010 Constitution, Kenyan courts

have developed rich jurisprudence on the essence, scope, and
application of public participation as a principle of governance in
Kenya. In particular, this Court has in the past considered the
centrality of the principle of public participation and laid down
signposts, coordinates, guardrails and search lights to be used by
courts when adjudicating and determining cases on alleged
infringement and violation of the value and principle of public
participation.

[86] For instance, In the Matter of the National Land
Commission (Advisory Opinion Application 2 of 2014) [2015] KESC 3
(KLR), this Court held that public participation constituted one of the
checks and balances in the discharge of the obligations that the
Constitution has assigned various government

institutions. In the words of Mutunga, CJ & P. (Concurring Opinion) at
paragraph 352:
“The participation of the people is a constitutional

safeguard, and a mechanism of accountability against
State organs, the national and county governments, as
well as commissions and independent offices. It is a
device for promoting democracy, transparency,
openness, integrity and effective service delivery.
During the constitution- making process, the Kenyan
people had raised their concerns about the hazard of
exclusion from the State’s decision-making processes.
The Constitution has specified those situations in
which the public is assured of participation in
decision-making processes. It is clear that the
principle of public participation did not stop with the
constitution-making process; it remains as crucial in
the implementation phase as it was in the
constitution-making process.”
[87]In one of its leading decisions on public participation, this Court

in the BAT Case underscored that public participation and
consultation is a living constitutional principle that goes to the tenet
of the sovereignty of the people. The Court observed at paragraph 96
that:
“… we would like to underscore that public

participation and consultation is a living
constitutional principle that goes to the constitutional
tenet of the sovereignty of the people. It is through
public participation that the people continue to find

their sovereign place in the governance they have
delegated to both the National and County
Governments.”

[88] The Court then proceeded to lay down the guiding principles for
public participation as outlined below:
“
(i) As a constitutional principle under Article
10(2) of the Constitution, public participation
applies to all aspects of governance.
(ii) The public officer and or entity charged with

the performance of a particular duty bears the
onus of ensuring and facilitating public
participation.
(iii) The lack of a prescribed legal framework for

public participation is no excuse for not
conducting public participation; the onus is on
the public entity to give effect to this
constitutional principle using reasonable
means.
(iv) Public participation must be real and not

illusory. It is not a cosmetic or a public
relations act. It is not a mere formality to be
undertaken as a matter of course just to ‘fulfill’
a constitutional requirement. There is need for
both quantitative and qualitative components
in public participation.
(v) Public participation is not an abstract notion;

it must be purposive and meaningful.
(vi) Public participation must be accompanied by

reasonable notice and reasonable opportunity.
Reasonableness will be determined on a case-
to- case basis.

(vii) Public participation is not necessarily a
process consisting of oral hearings, written
submissions can also be made. The fact that
someone was not heard is not enough to annul
the process.
(viii) Allegation of lack of public participation does

not automatically vitiate the process. The
allegations must be considered within the
peculiar circumstances of each case: the mode,
degree, scope and extent of public
participation is to be determined on a case-to-
case basis.
(ix) Components of meaningful public participation

include the following:
a. Clarity of the subject matter for the public to

understand;
b. Structures and processes (medium of

engagement) of participation that are clear
and simple;
c. Opportunity for balanced influence from the

public in general;
d. Commitment to the process;
e. Inclusive and effective representation;
f. Integrity and transparency of the process;
g. Capacity to engage on the part of the public,

including that the public must be first
sensitized on the subject matter.”
[89] It is important to point out at the outset that in the matter under
consideration in this consolidated appeal, the superior courts below
established

and were in agreement that at the early stages of the legislative
process, the Bill was subjected to sufficient public participation. This
finding was not challenged in the consolidated appeal or cross appeals
before this Court. The only two aspects of public participation that
have been challenged relate to the contention that after the public
participation exercise, the National Assembly introduced into the Bill
new provisions, which amendments were not subjected to public
participation and secondly, that the National Assembly did not assign
reasons for accepting and rejecting views received in the course of
public participation. This last question is discussed separately later in
this judgment as an independent issue.
[90] Upon reviewing the submissions and pleadings before the Court,
it is our considered view that to adequately address the framed
question, a number of sub- questions need to be answered by the
Court. These sub-questions are:
a) Should substantive amendments consequent to the

process of public participation and intended to give effect
to views and suggestions from the public participation
process be subjected to a fresh round of public
participation?
b) Is a Finance Bill a time-bound piece of legislation? If so, is

it reasonable to require the National Assembly to conduct
a fresh round of public participation for amendments
giving effect to proposals from an earlier public
participation exercise given the time-sensitive nature of
the legislation?
c) Did Sections 18, 21, 23, 32, 38, 44, 69, 79, 80, 81, 82, 83, 85, 86,
100,

101, and 102 of the Act fail to undergo the entire
legislative process, and are therefore unconstitutional?
We will consider each of these sub-questions in turn.

a) Whether a fresh round of public participation is required
when new provisions are introduced in a bill through
amendments after public participation has already taken
place
[91] The superior courts below agreed on the fact that there were
new provisions, which did not undergo public participation as they
were introduced into the Bill during the Committee stage. However,
the two superior courts below parted ways on whether these
amendments should have undergone fresh public participation. It is
important to point out at the outset that the Court of Appeal’s
judgment refers to 18 new provisions in certain parts of the impugned
judgment, and in other parts to more than 18 new provisions. For
clarity, the disputed provisions are 21 in number, falling under two
categories. The first category are 17 new provisions which were not in
the original Bill. The said provisions were enacted as Sections 18, 21,
23, 32, 38, 44, 69, 79, 80, 81, 82, 83, 85, 86, 100, 101, and 102 of the
Act. The second category are 4 provisions, that is, Sections 24, 26, 47,
and 72 of the Act, which though were in the original Bill, were
subjected to extensive amendments before enactment.
[92]For the High Court, there was no obligation for fresh public
participation on amendments to Bills. It held that it was bound by the
Pevans Case, where the Court of Appeal held that once the National
Assembly has heard the views of members of the general public and
stakeholders on a Bill, it is not precluded from effecting amendments
to the Bill during debate before it is passed. Further that, the Court of
Appeal found a contrary position would amount to curtailing the
legislative mandate of the National Assembly. Of relevance, the High
Court at paragraph 157 of its judgment stated–
“By its nature public participation is intended to

explore new issues that may be raised, interrogate and
understand existing ones which may lead to revision or
refinement of the Bill through new proposals and
amendments. We are bound by the holding in Pevans
case (supra) that once the

National Assembly has heard the views of members of
the general public and stakeholders on the Bill, it is
not precluded from effecting amendments to the Bill
during debate before it is passed, as a contrary
position would amount to curtailing the legislative
mandate of the National Assembly. The National
Assembly was not required to re- submit the
amendments to public participation on narrow issues
that were within what was contemplated within the
Objects and Memorandum of the Bill.”
[93]The Court of Appeal on its part disagreed with the above finding
by the High Court and held that those amendments ought to have
undergone fresh public participation as they were ‘substantive’
amendments. In the relevant part at paragraph 159 of the Court of
Appeal’s judgment it held:
“It appears the High Court never interrogated the

facts before the High Court in the Pevans case.
Clearly, the facts in the Pevans case as highlighted
above are distinguishable from the facts in these
appeals. Unlike in the Pevans case, in the instant case,
totally new provisions of the law which were not
subjected to public participation and were not
contained in Finance Bill, 2023 which was subjected to
public participation found their way into the final
enactment. Contrary to the law, the 18 new provisions
did not go through the entire legislative stages. They
were not subjected to the First and Second Reading.
These are impermissible serious legislative flaws.

Therefore, their purported enactment into law was
imperfect and a mockery to the legislative process
contemplated in the Constitution and the Standing
Orders.”

[94] Before us, the appellants contended that the Court of Appeal
overturned its decision in the Pevans Case while the respondents
contended that the Court of Appeal merely distinguished its earlier
pronouncement. We have considered the Court of Appeal’s judgment
in the Pevans Case and observe that in the relevant holding, the
Court of Appeal categorically expressed itself as follows:
“It is common ground that up to the point when the

National Assembly passed the Bill on 30th May 2017,
it was preceded by adequate public participation. As
published, the Bill proposed a tax rate of 50%.
Proposals were made, ranging from adopting a tax of
50%, 35% and retaining the tax as it was under the
2016 Finance Act. With respect, we agree with the
learned judge that there was no need for further
public participation on the narrow issue of the
percentage of the tax. It must be appreciated that
after the National Assembly has heard the views of
members of the public and industry stakeholders on a
Bill, it is not precluded from effecting amendments to
the Bill, before finally passing it. Those amendments
do not necessarily have to agree with the views
expressed by the people who have been heard, so long
as the views have been taken into account. See Nairobi
Metropolitan PSV Saccos Union Ltd & 25 Others v
County of Nairobi Government & 3 Others (2013)
eKLR. In our view, it would bring the legislative
process to a complete halt and
undermine Parliament’s ability to discharge its
constitutional mandate if, after having facilitated

public participation on a Bill, Parliament is required
to adjourn its proceedings every time a member
proposes an amendment to the Bill, so that further
public participation can take place on the particular
proposed amendment. [Emphasis added]

It is on the authority of this statement that the High Court concluded
that, being bound by that decision, no further public participation was
required for amendments made subsequent to public participation.
[95]On the application of the doctrine of stare decisis, the High Court
cannot be faulted for relying on the principle established in the
Pevans Case, which specifically indicated that a fresh round of public
participation was not necessary for amendments made to a Bill after
the public participation process. While the Court of Appeal was within
its rights to distinguish the circumstances of the impugned case from
those in the Pevans Case, courts should consider the legitimate
expectations that accrue to duty bearers based on previously
established legal pathways.
[96] In the BBI Judgment, Koome CJ & P, observed as follows on the

due path that courts should follow when overruling or distinguishing
previous decisions that duty bearers had already relied upon. She
held thus:
“[341] My view is that common law doctrines like the

stare decisis doctrine must be interpreted in a
manner that promote and give effect to the values
and principles of the Constitution. In the instant
case, the two superior courts below, unfortunately did
not take into account the value and principle of the
rule of law enshrined in Article 10(2)(a) that
commands compliance with court orders before
making a decision that has the effect of penalizing
IEBC for relying on a declaratory finding by a High
Court. IEBC cannot be faulted as its actions then
were supported by the Isaiah Biwott Case. Although
the said decision was not binding on the High Court
or the Court of Appeal, it created a legitimate
expectation by IEBC that carrying out business with
three Commissioners complied with the law.

[343] The significance of the above is that where a
state organ or private individual acts in compliance
with a court decision, like IEBC did in this case, it
ought not be punished by a subsequent court’s
decision declaring such actions illegal based on a
differing interpretation of the law.
[344]In circumstances where a High Court in a later

case, like in the instant case, disagrees with an
earlier finding by another bench of the High court,
the best approach is for the court to craft and mount
appropriate remedies taking into account contextual
considerations like the reliance placed by public
bodies and private individuals on earlier court
decisions. In such instances, the High Court ought to
opt for the remedy of “prospective overruling” or
“suspending the declaration of invalidity” and
stipulate that the effect of its decision will apply
prospectively.”
[97]We would add that courts should be sensitive and alert to the
need to ensure that undue burden is not imposed on duty bearers for
actions taken that can be deemed to flow from a reasonable reading of
past decisions from the courts. In such circumstances, when a court
distinguishes its past decisions in a manner that can be read strictly
to be a departure from past pronounced position in law, it would be
appropriate for the court to stipulate that such pronouncements will
apply prospectively.
[98] In comparative practice, the Supreme Court of India has recently

in the case of Mineral Area Development Authority & Ano. vs.

M/S Steel Authority of India & Ano., Civil Appeal Nos. 4056-4064
of 1999 [2024 INSC 607] held as follows:
“The doctrine of prospective overruling is applied when a

constitutional court overrules a well-established precedent

by declaring a new rule but limits its application to
future situations. The underlying objective is to avert
injustice or hardships.”
[99]Similarly, the United States’ Supreme Court in Chevron Oil

Company vs. Huson, 404 US 97 (1971) identified three separate
factors to be considered while deciding the applicability of
prospective overruling to be: “(i) the decision to be applied
prospectively must establish a new principle of law, either by
overruling clear past precedent on which litigants may have
relied, or by deciding an issue of first impression whose
resolution was not foreshadowed; (ii) the court must weigh the
merits and demerits in each case by looking to the prior history
of the rule in question, its purpose and effect, and whether
retrospective operation will further or retard the operation of
the rule; and (iii) whether the application of non-retroactivity
avoids substantial inequitable results, injustice or hardships.”
[Emphasis added]
[100] Accordingly, given the ratio decidendi in the Pevans Case, if

the court intended to modify its position, it should have indicated so
directly and addressed the question whether its new position would
apply prospectively. It was therefore in error for the court to make an
about-turn over three years after making the original decision without
affording duty bearers sufficient time to adjust to the new position.
[101] We appreciate that no party before this Court contests the

finding that there were 17 new provisions introduced to the Bill in the
post-public participation phase of the law-making process. Where the
parties disagree and what is in contestation before this Court, is the
purport and tenor of these amendments, and whether it is a legal

requirement that when such new provisions are introduced mid-way
through the legislative process, after the initial public participation
process, such amendments should be subjected to a fresh round of
public participation.

[102] The Constitution provides for public participation in the law-
making process by stipulating in Article 118(1) as follows:
“118(1) Parliament shall—

(a)conduct its business in an open manner, and its
sittings and those of its committees shall be in public;
and
(b) facilitate public participation and involvement in the

legislative and other business of Parliament and its
committees.”
[103] The above provision imposes a duty on Parliament to facilitate

public participation and involvement in the legislative process. We
note that to give effect to this constitutional edict, the National
Assembly has through its Standing Order No. 127 on ‘Committal of
Bills to Committee and Public participation’ provided for public
participation in the following terms:
“
(1) A Bill having been read a First Time shall stand
committed to the relevant Departmental Committee
without question put.
(1A) Save for a Finance Bill, the Speaker may refer various
provisions of a Bill proposing to amend more than one
statute in its principal provisions to the
relevant Departmental Committees in accordance with
their mandates.
(2) Notwithstanding paragraph (1), the Assembly may

resolve to commit a Bill to a select committee
established for that purpose.

(3) The Departmental Committee to which a Bill is
committed shall facilitate public participation on the
Bill through an appropriate mechanism, including—
...
(3A) The Departmental Committee shall take into account the views

and recommendations of the public under paragraph
(3) in its report to the House.
(4) Subject to Standing Order 129 (Second Reading of a

Bill to amend the Constitution) the Chairperson of the
Departmental Committee to which a Bill is committed
or a Member designated for that purpose by the
Committee shall present the Committee’s report to the
House to inform debate within thirty calendar days of
such committal and upon such presentation, or if the
Committee’s report is not presented when it becomes
due, the Bill shall be ordered to be read a Second Time
on such day as the House Business Committee shall, in
consultation with the Member or the Committee in
charge of the Bill, appoint.
(4A) The Speaker may extend the period for public participation
under paragraph (4) where various provisions of a Bill
proposing to amend more than one statute in its
principal provisions are referred to separate
Departmental Committees
under paragraph (1A).
(4B) Paragraph (4) shall not apply to or in respect of—

a) an Appropriation Bill, a Supplementary
Appropriation Bill, a Finance Bill, a Consolidated
Fund Bill, a County Allocation of Revenue Bill, a
Division of Revenue Bill, an Equalization Fund
Appropriation Bill and a County Governments
Additional Allocations Bill; or
b) a Bill to amend the Constitution in respect of its

Petition Nos. E031, E032 & E033 of 2024 Page 100 of
Second and Third Reading.
(5) If for any reason, at the commencement of the Second

Reading the report of the Committee has not been
presented, the

Committee concerned shall report progress to the
House and the failure to present the report shall be
noted by the Liaison Committee for necessary action.
(6) Despite paragraph (1)—
a) the Speaker may direct that a particular Bill be

committed to such committee as the Speaker may
determine.
b) a Consolidated Fund Bill, an Appropriation Bill or a

Supplementary Appropriation Bill shall be
committed to the Budget and Appropriation
Committee.” [Emphasis added]
[104]It is with all these facts in mind that we must now turn to
consider and determine whether the National Assembly was under an
obligation to subject the new provisions of the Bill introduced after
the public participation process to a fresh round of public
participation. In order to determine whether the National Assembly
met the obligations imposed on it under Article 118(1) of the
Constitution, the principles laid down by this Court in the BAT Case
take centre stage. In particular, the following passages extracted from
that judgment are apposite:
“Public participation must be real and not illusory. It

is not a cosmetic or a public relations act. It is not a
mere formality to be undertaken as a matter of course
just to ‘fulfill’ a constitutional requirement. There is
need for both quantitative and qualitative components
in public participation.”
Further, the Court explained that:

“Public participation is not an abstract notion; it must be
purposive and meaningful.”

[105]The implication of the foregoing principles is that the process of
public participation ought not be reduced to a mere symbolic box-
ticking ritual with no influence in the legislative process. We are also
of the considered view that the approach we take on this question
should be one that ensures that public participation is ‘purposive and
meaningful’ and not one that empties the Constitution of its meaning.
Bearing in mind that a constitution does not subvert itself, it would be
a contradiction for the Constitution to provide for public participation,
and at the same time allow totally new provisions, unrelated to the
provisions that had been subjected to public participation to be
introduced midway through the legislative process by way of
amendments, as well as insulate such provisions from the requirement
of public participation. This would create room for mischief whereby a
duty bearer can withhold some provisions from being subjected to
public participation, only to introduce such provisions at the tail-end
of the law-making process. This could not have been the intention of
the framers when they introduced in the Constitution the concept of
[106] In addressing a similar question, the High Court in Kenya

Bankers Association vs. Attorney General & Another; Central
Bank of Kenya (Interested Party), HC Petition No. 427 of 2018;
[2019] eKLR addressed the need to distinguish between minor
(narrow) amendments and substantive amendments to determine
whether a provision introduced post-public participation ought to
undergo a fresh round of public participation. The High Court took the
position that unlike minor amendments, substantive amendments to a
Bill post public participation required further public participation. It
held thus at paragraph 71:
“The averment that every amendment moved must

undergo the process of public participation would
negate and undermine the legislative process.
However, where major amendment is introduced and
where is contrary to the purpose of the Bill the
position may be different.”

[107] We agree with the above persuasive decision of the High
Court. We are also persuaded by the comparative decision of the
Constitutional Court of South Africa in South African Veterinary
Association vs. Speaker of the National Assembly and Others
(CCT27/18) [2018] ZACC 49 which appreciated a distinction between
what it considered ‘material’ amendments that would require further
public participation, and what it called ‘technical or semantic’
amendments that would not require further public participation.
[108]Flowing from the foregoing, it emerges that in determining

whether a new provision or an amendment to a Bill in the post-public
participation phase should be subjected to a fresh round of public
participation, a number of principles ought to be taken into account:
Firstly, the breadth and character of amendments to a Bill post-public
participation is of importance. There is a distinction between
substantive (material) amendments and minor (trivial/inconsequential/
clerical/incidental) amendments. Secondly, the breadth and character
of amendments form a basis for a consideration of whether or not
Parliament has an obligation to conduct further amendments. Thirdly,
as an established rule, where minor amendments have been made to a
Bill, further public participation on those amendments would be
unnecessary.
[109]In addition, we find that it is important to demarcate what is

meant by a substantive amendment. Roger Rose, in the
Commonwealth Legislative Drafting Manual (2017,
Commonwealth Secretariat) at p. 115, observes that “substantive
amendments make the changes necessary to implement
proposed changes in policy”. This point is evident in the approach
by the Supreme Court of India in Sree Sankaracharya University of
Sanskrit and others vs. Dr. Manu and another, 2023 INSC 539,
where a substantive amendment is defined as one intended to change
the law, as opposed to merely clarifying or explaining the previous
law.
[110] Similarly, H. Khurana and S. Vasudevan, in Clarificatory

Amendments to Indian Tax Laws (2022, International Tax
Review), describe ‘substantive

amendments’ as those that “modify existing rights, impose new
obligations, or impose new duties, or attach a new disability”.
Additionally, the Supreme Court of Canada, in Bathurst Paper
Limited vs. Minister of Municipal Affairs of New Brunswick,
[1972] S.C.R. 471, held that an amendment is presumed to be
substantive unless it is shown that only language improvements,
meant solely to enhance drafting, were intended. Therefore, a
substantive amendment is to be understood as one that changes the
substance or meaning of an existing provision, particularly by
addressing policy questions, altering the purpose, scope, or content of
a provision, by adding new provisions or removing old ones.
[111] In contrast, V.C.R.C. Crabbe in Legislative Drafting

(Cavendish Publishing, 1993) at p. 189, defines ‘minor amendments’
drawing from section 2 of the English statute The Consolidation of
Enactments (Procedure) Act, 1949, to mean “amendments of which
the effect is confined to resolving ambiguities, removing
doubts, bringing obsolete provisions into conformity with
modern practice, or removing unnecessary provisions or
anomalies that are not of substantial importance, and
amendments designed to facilitate improvement in the form
and manner in which the law is stated …”. Similarly, Lawrence E.
Filson and Sandra L. Strokoff, in The Legislative Drafter’s Desk
Reference (CQ Press, 2008) at p. 60, further differentiate substantive
amendments from technical and conforming amendments by noting
that “technical and conforming amendments are never
substantive—they are merely the device the drafter uses to
clean up the inconsistencies in the law created by the
substantive things the bill does. And [do not touch on] policy
questions”.

[112] To determine whether the final version of a Bill is a
substantive amendment of a previous version or not, the two versions
should be compared. In this respect, we have examined the first
category of the impugned 17 new provisions of the Act

being Sections 18, 21, 23, 32, 38, 44, 69, 79, 80, 81, 82, 83, 85, 86, 100,
101, and
102 which are totally new provisions and were not in the original Bill.
Having done so, we note the following:
i. Section 18 amended Section 28A of the Income Tax Act by

inserting the words “or other manufacturing activities including
refining” immediately after the words “human vaccines”; and
inserted the word “and” at the end of paragraph (b). Section 28A
of the Income Tax Act creates a special operating framework
arrangement, providing that companies under three specified
categories shall be subject to the rate of tax specified in the
special
operating framework arrangement with the Government. The import of
Section 18 of the Finance Act, 2023 is to expand the categories
of beneficiaries under Section 28A of the Income Tax Act beyond
the previous limitation of the category of manufacturers of
human vaccines to other manufacturing activities including
refining. The amendment, by the
addition of the conjunction ‘and’ changes the qualification parameter to
qualify for the special operating framework by requiring a
company to meet the criteria under (a), (b) and (c) in Section
28A of the Income Tax Act. Having analyzed the implications of
this amendment, we are convinced that it gives effect to policy
choices and goes beyond being merely clarificatory or polishing
of legislative language. In effect, it is a substantive amendment.
ii. Section 21 amended Section 35 of the Income Tax Act by

introducing amongst others provisions, taxation of digital
content monetization, sales promotion, marketing and
advertising services. It also provided that a person who receives
rental income on behalf of the owner of the premises shall
deduct tax therefrom. These amendments give effect to policy
choices and go beyond being merely clarificatory and in effect, is
a substantive amendment.
iii. Section 23 amended Section 133 of the Income Tax Act. It

introduced a new
provision to the effect that: ‘The Income Tax Act is amended in
Section

133(6), by deleting the expression 31st December 2023’ and
substituting it with ‘31st December, 2024’. Section 133 of the
Income Tax Act provides for ‘Repeals and transitional’ while sub-
section 133(6) provides thus: ‘Notwithstanding the repeal of the
Second Schedule, the provisions of paragraph 24 E of the
repealed Schedule shall continue to be in force until 31st
December, 2023’. Looking at this amendment, we deem it as
being merely clarificatory as to the date when paragraph 24E of
the repealed Schedule would apply. We thus find that this
amendment was not a substantive one.
iv. Section 32 amended Section 12 of the Value Added Tax Act by

inserting a new subsection which reads; ‘subject to sub-section
(1), in the case of the national carrier, the time of supply shall be
the date on which the goods are delivered or services
performed’. Being a provision on imposition of value added tax
on supplies, this change on treatment of the national carrier, is a
policy choice and goes beyond being merely clarificatory or
polishing of legislative language. We therefore find that this
amendment was substantive in nature.
v. Section 38 amended the Second Schedule of to the Value Added

Tax Act which provides for zero-rated supplies. The effect of the
amendments was to remove the supply of maize (corn) flour,
cassava flour, wheat or meslin flour and maize flour containing
cassava flour by more than ten percent in weight from the
category of zero-rated supplies. It also added to the category of
zero-rated supplies being the exportation of taxable services,
inbound international sea freight offered by a registered person,
liquefied petroleum gas, all tea and coffee locally purchased for
the purpose of value addition before exportation subject to

approval by the Commissioner-General, the supply of locally
assembled and manufactured mobile phones, the supply of
motorcycles of tariff heading 8711.60.00, the supply of electric
bicycles, the supply of solar and lithium ion batteries, the supply
of electric buses of tariff

heading 87.02, inputs or raw materials locally purchased or
imported for the manufacture of animal feeds, and bioethanol
vapour (BEV) Stoves classified under HS Code 7321.12.00
(cooking appliances and plate warmers for liquid fuel). These are
very substantive amendments.
vi. Section 44 amended Section 36 of the Excise Duty Act, 2015 by

introducing a new subsection (1A) which provides that in the
case of a licensed manufacturer of alcoholic beverages, excise
duty shall be payable to the Commissioner within twenty-four
hours upon removal of the goods from the stockroom. This
amendment has a significant ramification on how licensed
manufacturers of alcoholic beverages pay excise duty and is in
the nature of a policy choice and therefore a substantive
amendment.
vii. Section 69 amended Section 5 of the Miscellaneous Fees and

Levies Act, 2016, by deleting subsection (4). The deleted sub-
section provided that ‘The Commissioner shall, by notice in the
Gazette, adjust the specific rate of export levy annually to take
into account inflation in accordance with the formula specified in
Part III of the First Schedule’. This change in the power of the
Commissioner is a substantive amendment.
viii. Section 79 amended Section 5 of the Kenya Revenue Authority

Act, 1995, in subsection (2A), by deleting the words ‘for the
better carrying out of its functions’ and substituting the same
with ‘the staff of the Authority, general public and other
jurisdictions’. The amended subsection 2A reads thus after the
amendment: ‘The Authority may establish an institution to
provide capacity building and training the staff of the Authority,
general public and other jurisdictions’. Looking at this provision,
it is in the nature of a clarificatory or explanatory amendment
intended to explain in a clear and detailed manner the intended
beneficiaries of the capacity building or training programmes
and is therefore not a substantive amendment.
ix. Section 80 amended Section 13 of the Kenya Revenue Authority

Act, 1995 by inserting under sub-section (1) thereof the words
‘and Deputy

Commissioners’ immediately after the word ‘Commissioners’;
and by deleting sub-section (2) thereunder. The import of the
amendment in sub- section 1 is to provide that: ‘The Board shall
appoint, to the service of the Authority, such Commissioners and
Deputy Commissioners as may be deemed necessary’. This
amendment was intended to bring the appointment of Deputy
Commissioners within the mandate of the Board. This in our
view was a substantive amendment. In addition, the deleted sub-
section 2 provided thus: ‘The Commissioner-General shall, with
the approval of the Board, appoint such heads of departments as
may be required for the efficient performance of the functions of
the Authority’. This amendment changed the powers of the
Commissioner-General and is therefore a substantive
amendment.
x. Section 81 amended the First Schedule to the Kenya Revenue

Authority Act, 1995 by inserting the following new item - ‘13.
The Alcoholic Drinks Act, 2010’. The First Schedule of the Act
gives effect to Section 5 of the Act, by providing a list of written
laws for which the Kenya Revenue Authority shall administer
and enforce for the purpose of assessment, collection, and
accounting of all revenues in accordance with those laws.
Therefore, the amendment, by adding the Alcoholic Drinks Act,
2010 as amongst the laws that the Kenya Revenue Authority
would administer and enforce, was a substantive amendment.
xi. Section 82 amended Section 25B of the Retirement Benefits Act

in sub- section (1) by deleting the words ‘sixty per cent’
appearing in paragraph (eb) and substituting therefor the words
‘thirty three percent’. Section 25B of the Retirement Benefits Act
provides for ‘requirements for registration of administrators’.

The amended sub-section 1(eb) provides thus: ‘No applicant for
registration as a scheme administrator shall be registered unless
such applicant - has at least sixty percent of its paid-up share
capital owned by Kenyan citizens unless the applicant is a bank
or an insurance

company’. The change of the prescribed share capital owned by
Kenyan citizens for scheme administrators from sixty per cent to
thirty three per cent and is therefore a substantive amendment.
xii. Section 83 amended Section 38 of the Retirement Benefits Act

by inserting a new sub-section, (1A). The provision reads that
subject to sub-section (1) (b), where a fund is set up exclusively
for the purpose of investing sharia compliant funds, the fund
shall be exempted from the guidelines. Section 38 of the
Retirement Benefits Act provides for ‘restriction on use of
scheme funds’. By introducing a new sub-section 1A exempting
funds set up exclusively for the purpose of investing sharia
compliant funds from the guidelines on restrictions on use of
scheme funds was a substantive amendment.
xiii. Section 85 amended Section 2 of the Alcoholic Drinks Act by

inserting the definition of ‘minimum input cost’ to mean input
cost published by Kenya Revenue Authority through excise
regulations. By introducing a definition and vesting the authority
to prescribe the ‘minimum input cost’ to the discretion of the
Kenya Revenue Authority, the amendment was rendered a
substantive one.
xiv. Section 86 amended Section 31 of the Alcoholic Drinks Control

Act in sub- section (2) by inserting a new paragraph, that is, (c)
‘a person shall not sell, manufacture, pack or distribute alcoholic
drinks at a price below the minimum input cost’. Section 31 of
the Alcoholic Drinks Control Act provides for selling of alcoholic
drinks in sachets. The amendment prescribed minimum price for
the sale, manufacture, packing or distribution of alcoholic
drinks, this was a substantive amendment.

xv. Section 100 amended Section 4 of the Special Economic Zones
Act by deleting sub-section 4 and substituting thereof the
following new subsection
– (4) ‘A special economic zone shall be a designated
geographical area which may include both customs controlled
area and non-customs

controlled area where business enabling policies, integrated
land uses and sector-appropriate onsite and off-site
infrastructure and utilities shall be provided, or which has the
potential to be developed, whether on a public, private or public-
private partnership basis, where development of zone
infrastructure and goods introduced in customs-controlled area
are exempted from customs duties in accordance with customs
laws’. Section 4 of the Special Economic Zones Act provides for
‘declaration of special economic zones’. The deleted provision
provided thus: ‘A special economic zone shall be a designated
geographical area where business enabling policies, integrated
land uses and sector-appropriate on-site and off-site
infrastructure and utilities shall be provided, or which has the
potential to be developed, whether on a public, private or public-
private partnership basis, where any goods introduced and
specified services provided are regarded, in so far as import
duties and taxes are concerned, as being outside the customs
territory and wherein the benefits provided under this Act
apply’. This change in the definition of ‘special economic zone’
was certainly a substantive amendment.
xvi. Section 101 amended Section 6 of the Special Economic Zones

Act in paragraph (b) by deleting the word ‘Kenya’ and
substituting thereof the words ‘the customs territory’; and
inserting a proviso, ‘Provided that – (i) goods whose content
originates from the customs territory shall be exempt from
payment of import duties; and (ii) goods whose content partially
originates from the customs territory shall pay import duties on
the non- originating component subject to the customs
procedures’. Section 6 of the Special Economic Zones Act

provides for ‘goods to be considered as exported and imported
into Kenya’. The amended sub-section provided: Unless
otherwise provided under this Act, or any other written law —
‘goods which are brought out of a special economic zone and
taken into any part of the customs territory for use therein or
services provided from a special economic zone to any part of
the customs territory shall be deemed to be

imported into Kenya’. This amendment had the impact of
changing what goods are considered to be exported or imported
into the country and we therefore hold that it was a substantive
amendment.
xvii. Section 102 amended Section 24 of the Export Processing Zones

Act by inserting the following proviso at the end of paragraph (b)
– ‘Provided that
– (i) goods whose content originates from the customs territory
shall be exempt from payment of import duties; and (ii) goods
whose content partially originates from the customs territory
shall pay import duties on the non-originating component
subject to customs procedures’. Section 24 of the Export
Processing Zones Act provides for ‘goods deemed to be exported
and imported into Kenya’. The amendment had the effect of
extending the categories of goods exempt from payment of
import duty to include foods whose content originates from the
customs territory, and also specifying that goods whose content
partially originates from the customs territory shall pay import
duties on the non-originating component. This amounts to a
substantive amendment.
[113] We have also looked at the second category of impugned 4

provisions, which though in the original Bill, were subjected to
extensive amendments before enactment. These are Sections 24, 26,
47, and 72 of the Act. We interrogate each of the 4 provisions below:
i. Section 24 of the Act was in the original Bill as clause 22,

however new amendments were made to paragraphs 71, 72 and
73 of the First Schedule of the Income Tax Act. The First
Schedule to the Income Tax Act provides for ‘exemptions’; while
part 1 thereof provides for ‘income accrued in, derived from or
received in Kenya which is exempt from tax’. The impugned
amendment introduced the following new categories: ‘71.
Income earned by a non-resident contractor, sub-contractor,
consultant or employee involved in the implementation of a
project financed through a one hundred percent grant under an
agreement between the Government and

the development partner, to the extent provided for in the
Agreement: Provided that the non-resident is in Kenya solely for
the implementation of the project financed by the one hundred
percent grant; 72. Gains on transfer of property within a special
economic zone enterprise, developer and operator; and 73.
Royalties, interest, management fees, professional fees, training
fees, consultancy fee, agency or contractual fees paid by a
special economic zone developer, operator or enterprise, in the
first ten years of its establishment, to a non-resident person’.
These amendments were substantive.
ii. Section 26 of the Act, on amendments to the Third Schedule to

the Income Tax Act, was clause 24 in the original Bill. While the
original Bill had four categories on the individual rates of tax,
the Act introduced a fifth category being – ‘On the next Kshs.
3,600,000 - 32.5%’. The Third Schedule to the Income Tax Act
provides for ‘rates of personal reliefs and tax’. The introduction
of a new tax band was a substantive amendment.
iii. As for Section 47 of the Act on amendments to the First

Schedule of to the Excise Duty Act, this provision was originally
clause 43 of the Bill, and was substantively amended by the
introduction of additional items in the Act. For example, the
additional items included: (iv) by deleting the following
description ‘Motorcycles of tariff 87.11 other than motorcycle
ambulances and locally assembled motorcycles’ and substituting
therefor the following new description ‘Motorcycles of tariff
87.11 other than motorcycle ambulances, locally assembled
motorcycles and electric motorcycles’; (v) in the item of tariff
description ‘Imported Glass bottles (excluding imported glass
bottles for packaging of pharmaceutical products)’ by deleting
the rate of excise duty of ‘25%’ and substituting therefor the rate
of excise duty of ‘35%’; (vi) in the item of tariff description
‘Imported Alkyd’ by deleting the rate of excise duty of ‘10%’ and
substituting therefor the rate of excise duty of ‘20%’; (vii) in the
item of tariff description ‘Imported Unsaturated

polyester’ by deleting the rate of excise duty of ‘10%’ and
substituting thereof the rate of excise duty of ‘20%’; (viii) in the
item of tariff description ‘Imported Emulsion VAM’ by deleting
the rate of excise duty of ‘10%’ and substituting thereof the rate
of excise duty of ‘20%’. (ix) in the item of tariff description
‘Imported Emulsion - styrene Acrylic’ by deleting the rate of
excise duty of ‘10%’ and substituting thereof the rate of excise
duty of ‘20%’;
(x)in the item of tariff description ‘Imported Homopolymers’ by
deleting the rate of excise duty of ‘10%’ and substituting thereof
the rate of excise duty of ‘20%’; (xi) in the item of tariff
description ‘Imported Emulsion B.A.M.’ by deleting the rate of
excise duty of ‘10%’ and substituting thereof the rate of excise
duty of ‘20%’. The First Schedule of the Excise Duty Act provides
for ‘rates of excise duty’. It means that the amendment had the
effect of changing rates of excise duty on the identified items
and these were therefore substantive amendments.
iv. Lastly, with respect to Section 72 of the Act, on amendments to

the table appearing in Part I of the First Schedule to the
Miscellaneous Fees and Levies Act, was clause 70 in the original
bill. However, there were substantive changes with additional
items added in the Act. These additional items include: (j) by
deleting the expression ‘80% or USD 0.55kg’ appearing in tariff
no. 4301.60.00 and substituting therefor the expression ‘50% or
USD 0.32/kg whichever is higher’; (k) by deleting the expression
‘80% or USD 0.55/kg’ appearing in tariff no. 4301.30.00 and
substituting therefor the expression ‘50% or USD 0.32/kg
whichever is higher’; and (z) by deleting the tariff description
together with the rate of export levy corresponding to tariff

number ‘4101.40.00’. The First Schedule to the Act provides for
‘rates of excise duty’ with part 1 being a table on ‘excisable
goods’. The changes in rates of excise duty were substantive
amendments.
[114] Going by the distinction we have made herein above between

‘substantive’ amendments, and ‘minor/technical/inconsequential’
amendments, given the

preceding analysis of each of the impugned provisions, we hold that
two new provisions being Sections 23 and 79 were minor/technical
amendments. However, we further hold that, the other 15 new
provisions being Sections 18, 21, 32, 38, 44,
69, 80, 81, 82, 83, 85, 86, 100, 101, and 102 were substantive
amendments. With respect to the 4 amended provisions, being
amendments to Sections 24, 26, 47 and 72, we find that all the
amendments were also substantive amendments.
c) Should substantive amendments consequent to the

process of public participation and intended to give
effect to views and suggestions from the public
participation process be subjected to a fresh round of
public participation?
[115] The fact that the new provisions introduced into the Bill after
the process of public participation are substantive amendments is not
the end of the question as to whether they should be subjected to a
fresh round of public participation. A second consideration comes to
the fore, in this aspect we draw from the Constitutional Court of
South Africa which held in the case of South African Iron and Steel
Institute and Others vs. Speaker of the National Assembly and
Others [2023] ZACC 18 at paragraph 2 as follows:
“The central issue in this case is whether material

amendments to a Bill without further public
involvement passes constitutional muster. There are
two aspects that must be addressed: first, whether the
amendments are material, and second, whether these
amendments triggered the need for further public
involvement.” [Emphasis added]

[116] We are persuaded that a court has a duty to consider
whether the subject substantive amendments triggered the need for
further public participation. It is with this in mind that we need to
answer the question whether substantive amendments consequent to
the process of public participation, and intended to give effect to
views and suggestions from the public participation process, ought to
be subjected to a fresh round of public participation.

[117] Our starting point, once again, must be the principles
articulated in the BAT Case. This Court, in that case, established as a
guiding principle the requirement that:
“Public participation must be real and not illusory. It

is not a cosmetic or a public relations act. It is not a
mere formality to be undertaken as a matter of course
just to ‘fulfill’ a constitutional requirement. There is
need for both quantitative and qualitative components
in public participation.”
[118] This means that there is an obligation on Parliament to

consider and give effect to the proposals, views, suggestions, and
input from the process of public participation. Therefore, it is our
considered opinion that it would be circuitous and not amount to
prudent use of public resources to expect the National Assembly to
subject proposals, views, suggestions, and input from the public
participation exercise to a fresh round of public participation. We are
also persuaded by the position taken by the High Court in Law
Society of Kenya vs. Attorney General & Another, HC Petition No.
3 of 2016; [2016] eKLR, where the Court stated thus at paragraph
245:
“Whereas it is true that what were introduced on the

floor of the House were amendments as opposed to a
fresh Bill, it is our view that for any amendments to be
introduced on the floor of the House subsequent to
public participation, the amendments must be the
product of the public participation and ought not to be
completely new provisions which were neither
incorporated in the Bill as published nor the outcome

of the public input.” [Emphasis added]

In that regard, we agree with the submissions by the amicus curiae
that amendments which have been made in response to the results of
public participation do not need to be subjected to another round of
[119] Furthermore, as regards the 17 new provisions not in the

original Bill, and the 4 original provisions subjected to amendments,
we note that the Speaker of the National Assembly in his affidavit
dated 30th June, 2023 and filed before the High Court, averred that all
the impugned amendments to the Bill were introduced in line with the
Standing Orders; informed by the views obtained during public
participation; considered by the National Assembly and enacted as
Sections 18, 21,23,24,26,32,34, 38,44,47,69, 72,79, 80, 81, 82, 81, 83,
85, 84, 86, 100-101, and 102 of the Act..
[120] The Clerk of the National Assembly, for his part in paragraph 74
of his replying affidavit dated 17th August, 2023 and filed before the
High Court clearly outlined the stakeholders whose views informed
each of the amendments which are now expressed as 18,
21,23,24,26,32,34, 38,44,47,69, 72,79, 80, 81, 82, 83, 85, 86, 100, 101
of the Act. In summary, the replying affidavit of the Clerk outlined
contributions from various stakeholders and the specific amendments
they informed as follows: Sections 18 to 23 were based on proposals
by Ashford Partners; Section 24 was based on the views by LSK;
Section 26 was based on suggestions by Erastors Chogo, Mwangi &
Kamwara LLP, Grant Thornton Associates, Deloitte, ICPAK, EY,
Cabinet Secretary, National Treasury & Economic Planning during
public hearings, Taxwise, Okoa Uchumi, and CDH (Cliffe, Decker,
Hofmeyr); Section 32 was based on a proposal by Westminster
Consulting; Section 34 was based on a proposal by GNG Law, Section
38 was based on proposals by Free Kenya Movement, Andersen,

Anjarwalla & Khana, Grant Thornton Associates, Institute of Public
Finance, Democracy Trust Fund, University of Nairobi Women
Economic Power Hub, ICPAK, PCEA, Okoa Uchumi, Clean Cooking
Association of Kenya, CSPEN, KPMG Consultants, Andersen, Ernest &
Martin Associates, PWC, Association of Micro Finance Institutions,

International Chamber of Commerce, Basic Go/E-Mobility Kenya
Limited and Kenya Association of Manufacturers; Section 44 was as a
result of the presentation by Alcohol Prevention Task Force; Section
69 by Cliffe, Decker, Hofmeyr; Section 72 by National Treasury &
Economic Planning during public hearing; Section 79 was based on a
proposal by Kenya National Union of Nurses; Section 81 was
consequential to amendment of Section 44; Section 83 was based on a
suggestion by KPMG; Section 85 was based on the views presented by
Alcohol Prevention Task Force; and Sections 101 and 102 on the
views by Kenya Wines Agencies.
[121] It is instructive to note that the foregoing averments by the

Speaker and the Clerk of the National Assembly were never
challenged before the High Court, the Court of Appeal, and even
before this Court. Consequently, we accept it as an established fact
that the new provisions were introduced and amended to give effect
to the views from public participation. Therefore, to hold that fresh
public participation was necessary would negate the guiding
principles from this Court in the BAT Case that public participation
should be real and meaningful.
d) Is the Finance Bill a time-bound piece of legislation? If

so, is it reasonable to require the National Assembly to
conduct a fresh round of public participation for
amendments giving effect to proposals from an earlier
public participation exercise given the time-sensitive
nature of the legislation?
[122] In our view, another consideration on whether the impugned

amendments triggered the need for further public involvement, is the
nature of a Finance Bill. One of the factors that the High Court took
into consideration in determining whether there was need for further
public participation on the subject amendments to the Bill is the time-
bound nature of a Finance Bill. In this respect, the High Court held as
follows at paragraph 158 of its judgment:
“Having considered the relevant facts and the record

and bearing in mind that the Finance Bill is a time-
bound

legislation, we are satisfied that the public
participation process conducted by the National
Assembly was sufficient.” [Emphasis added]
We note that the Court of Appeal did not address its mind to this
question. Before us, the appellants urged us to consider the unique
time-bound nature of a Finance Bill in considering whether there was
need to subject the impugned amendments to a further round of
[123]In the BAT Case, this Court established the standard that duty
bearers must meet, and the threshold courts should use to determine
whether duty bearers have fulfilled their obligation with respect to
public participation. This threshold is set at a reasonableness
standard. In its guiding principles on public participation, this Court
defined this threshold as follows:
“Public participation must be accompanied by

reasonable notice and reasonable opportunity.
Reasonableness will be determined on a case-to-case
basis.”
This Court also proceeded to guide as follows:
“Allegation of lack of public participation does not

automatically vitiate the process. The allegations must
be considered within the peculiar circumstances of
each case: the mode, degree, scope and extent of
public participation is to be determined on a case-to-
case basis.”
[124] In an approach that chimes with the considerations this

Court set out in the BAT Case, the Constitutional Court of South
Africa has in Mogale and Others vs. Speaker of the National
Assembly and Others (CCT 73/22) [2023] ZACC 14 held at
paragraph 37 that there are three factors that ought to be considered
in determining whether the process adopted by a duty bearer in
facilitating public participation was reasonable. The Court held thus:

“In determining whether conduct has been reasonable in
the context of public participation the following factors
are of particular importance:
a) What Parliament itself has determined is

reasonable, and how it has decided it will facilitate
public involvement;
b) The importance of the legislation and its impact on

the public; and
c) Time constraints on the passage of a particular bill,

and the potential expense.” [Emphasis added]
[125] Timelines, whether statutory or constitutional, and the cost

implications of the modes and approach to public participation should
be taken into account in deciding whether Parliament has complied
with its obligation to ensure and facilitate public participation.
Therefore, where evidence is proffered demonstrating that Parliament
was required to pass a Bill within a specified period of time, this
factor will be accorded weight in determining the reasonableness of
the measures put in place to facilitate public participation over the
concerned Bill. It is within this framework that we must analyze the
appellants’ contention that the Court of Appeal ought to have
appreciated and taken into account the unique nature of a Finance
Bill, as a time-bound legislation, in determining whether the National
Assembly satisfied its duties to facilitate public participation and
involvement in the legislative process under Article 118 of the
Constitution, and whether it would have conducted fresh public
participation within the timelines set.
[126] It is not in dispute that a Finance Bill is an exceptional piece

of legislation that is not considered in the same manner as other
legislation. Section 39A of the PFM Act sets out certain salient steps
and timelines to be adhered to in the legislative process for
consideration and passage of a Finance Act. Section 39A of

PFM Act enjoins the Cabinet Secretary responsible for the National
Treasury to submit to the National Assembly, on or before the 30 th day
of April, a Finance Bill setting out the revenue raising measures for
the National Government. Thereafter, the relevant committee of the
National Assembly is required to introduce the Bill in the National
Assembly. Under Section 39A of the PFM Act, the National Assembly,
for its part must consider and pass the Bill, with or without
amendments, in time for it to be presented for assent by the President
on the 30th day of June each year. Consequently, the National
Assembly only has 61 days to consider and pass a Finance Bill, with or
without amendments. Therefore, when considering whether the public
participation utilized for the passing of a Finance Bill is adequate,
courts should consider the very limited time that the National
Assembly has to consider and pass the Bill under Section 39A of the
PFM Act.
[127] Based on the foregoing, we hold that given the unique

legislative route of enacting a Finance Bill, it is unreasonable to
require the National Assembly to subject provisions introduced as a
result of public participation to a fresh round of public participation
before a Finance Bill can be considered by the National Assembly.
Such a requirement would make it impractical for the National
Assembly to comply with Section 39A of the PFM Act and to pass a
Finance Bill within 61 days.
e) Did Sections 18, 21, 23, 32, 38, 44, 69, 79, 80, 81, 82, 83,
85, 86,
100, 101, and 102 of the Finance Act, 2023, fail to undergo
the entire legislative process and are therefore
unconstitutional?

[128] The last aspect of this issue relates to the Court of Appeal’s
finding that the failure of the impugned new provisions to go through
the entire legislative process, that is, being subjected to First and
Second Reading, was an impermissible serious legislative flaw. In the
relevant part, the Court of Appeal held at paragraph 159 thus:

“Contrary to the law, the 18(sic) new provisions did not
go through the entire legislative stages. They were not
subjected to the First and Second Reading. These are
impermissible serious legislative flaws. Therefore,
their purported enactment into law was imperfect and
a mockery to the legislative process contemplated in
the Constitution and the Standing Orders.”
[129] It is important to appreciate that a key feature of the

legislative process is the ability of legislators to propose and make
amendments to a Bill. Amendments allow legislators to refine the Bill,
add and subtract, improving its workability and addressing any
omissions in the original draft. It also provides an opportunity for
legislators to present alternative proposals, enabling them to express
different policy and political viewpoints on the issues the Bill
addresses and to ensure the proposals are not inconsistent with the
Constitution. In essence, the ability to propose amendments reflects
the core legislative and representative roles of lawmakers. See in this
regard: Michael Zander, The Law-Making Process (6th Ed.,
Cambridge University Press, 2004) pp. 81-84; and HB Ndoria Gicheru,
Demise and Rebirth of Parliament: A Kenyan Approach
(LawAfrica, 2017) p. 263.
[130]This brings to the fore the question as to whether it is a

requirement for amendments to a Bill to be subjected to the First and
Second Reading. The starting point is the Constitution, which at
Article 124(1) provides that:
“Each House of Parliament may establish committees, and

shall make Standing Orders for the orderly conduct of its
proceedings, including the proceedings of its committees.”
In effect, Standing Orders are written rules of procedure under which
Parliament regulates its proceedings, just as courts have their own
rules. See Mate & Another vs. Wambora & Another (Petition 32 of
2014) [2017] KESC 1 (KLR).

The answer to the question whether there was failure to subject
certain clauses of the Bill to the First and Second Reading, and if so
whether that failure rendered them unconstitutional lies on the
construction of the Standing Orders. As this Court has held in the
Speaker of the Senate Case at paragraph 61:
“While Parliament is within its general legislative

mandate to establish procedures of how it conducts its
business, it has always to abide by the prescriptions of
the Constitution. It cannot operate besides or outside
the four corners of the Constitution. This Court will
not question each and every procedural infraction that
may occur in either of the Houses of Parliament. The
Court cannot supervise the workings of Parliament.
The institutional comity between the three arms of
government
another. mustadded]
[Emphasis not be endangered by the
unwarranted intrusions into the workings of one arm
by
[131] It is a glaring omission that in the impugned judgment, the

Court of Appeal failed to identify the particular Standing Order that
was breached by the failure to subject amendments to the Bill to the
First and Second Reading. On our part, we have looked at Part XIX of
the National Assembly’s Standing Orders (6th Edition), that
provide for ‘Public Bills’, running from Standing Order 113 to 154,
and cannot see any provision, imposing a requirement for
amendments to Bills to be subjected to First and Second Reading. We
therefore find that there is no requirement for amendments to Bills to
undergo First and Second Reading. Consequently, the National
Assembly did not breach its Standing Orders or the law in the manner
in which it processed the impugned amendments to the Bill.
[132] In conclusion, we hold that where new amendments, though

substantive, are introduced pursuant to views gathered during public
participation, then in such circumstances, Parliament is not required
to undertake fresh public participation. Furthermore, bearing in mind
the time-sensitive nature of a Finance

Bill, it would be unreasonable to require or subject amendments
intended to give effect to proposals and suggestions from a public
participation exercise to another fresh round of public participation.
[133] We further hold that, the new provisions, being Sections 23

and 79 were minor/technical amendments and not substantive
amendments. We also hold that the impugned 15 new substantive
provisions introduced in the Bill during the Committee Stage, being
Sections 18, 21, 32, 38, 44, 69, 80, 81, 82, 83, 85, 86, 100, 101, and
102; and the amendments to the 4 provisions amended during the
Committee Stage, being Sections 24, 26, 47 and 72 of the Bill, were
made to give effect to suggestions and views from the public
participation exercise. It follows therefore that they were not required
to undergo a fresh process of public participation. Accordingly, we
allow the appellants’ appeal on this question, and hold that the
National Assembly did not violate the Constitution in amending the
Bill to give effect to the proposals, views and suggestions from the
public participation process.
iv. Whether parliament has an obligation upon conclusion

of the public participation exercise to provide detailed
reasons for accepting or rejecting views, and whether
failure to give reasons vitiate the legislative process and
invalidates the legislation passed
[134] Upon reviewing the submissions and pleadings before the

Court, it is our considered view that to adequately address this
overarching framed question, two sub-questions must be answered by
this Court. These sub-questions are:
a) Is there a legal obligation on Parliament to provide

detailed reasons for accepting or rejecting views upon

conclusion of a public participation exercise?
b) Did the National Assembly comply with its obligations

under Article 10(2)(c) of the Constitution to reasonably
ensure

transparency and accountability in the processing of
public proposals, views, input and suggestions regarding
the Finance Bill, 2023?
We will consider these two sub-questions in turn.
(a) Is there a legal obligation on Parliament to provide

detailed reasons for accepting or rejecting views upon
conclusion of a public participation exercise?
[135] On this issue, he High Court, at paragraph 154, held that:
“The petitioners also complained that some of the

submissions by members of the public were rejected
without giving reasons. The enactment of Finance Act
is a legislative process and in discharge of its
legislative mandate, the National Assembly passed it.
There is no express obligation on Parliament to give
written reasons for adopting or rejecting any proposals
received from members of the public. Nonetheless, we
think that in order to enhance accountability and
transparency, it is desirable that the relevant
committee, after conducting public participation gives
reasons for rejecting or adopting proposals received.”
[Emphasis added]
[136] This finding was reversed by the Court of Appeal, which held
that, considering the national values and principles of governance in
Article 10(2)(c) of the Constitution—particularly the values of
accountability and transparency— Parliament has a duty to provide
reasons for adopting or rejecting public views. The Court of Appeal
stated as follows at paragraph 187 of its judgment:
“Accountability, one of the principles in Article 10 (2) (c)
means that officials must explain the way in which they

have used their power. Transparency, also a
requirement in the exercise of public power means
openness, which is the opposite of secrecy. Therefore,
the constitutional requirement for transparency and
accountability imposes an obligation upon State
organs to inform the general public and stakeholders
why their views were not taken into account and why
the views of some of the stakeholders were preferred
over theirs. Such an approach will not only enhance
accountability in the decision making processes by
State organs but also it will enhance public confidence
in the processes and in our participatory democracy.
To suggest otherwise would be a serious affront to
Article 10 (2).”
[137] Given these competing findings by the two superior courts

below, it is now upon this Court to determine whether there is a legal
obligation on Parliament to provide detailed reasons for accepting or
rejecting public views. Before this Court, most respondents supported
the view adopted by the Court of Appeal, arguing that, pursuant to
Article 10(2)(c) of the Constitution—particularly the values of
accountability and transparency—Parliament is obligated to give
reasons for rejecting or accepting views. Additionally, the 3 rd and 5th
respondents contended that this obligation also arises from Article
47(2) of the Constitution, which enshrines the right to be given
written reasons for any action to a person who has been or is likely to
be adversely affected by administrative action.
[138] We will begin with the assertion by the 3rd and 5th
respondents that Article 47(2) imposes this obligation on Parliament.
As the provision states: “If a right or fundamental freedom of a person
has been or is likely to be adversely affected by administrative action,
the person has the right to be given written reasons for the action.”
This right is qualified by the requirement that it applies in the context
of “an administrative action.” This raises the question: Is a
legislative process an

administrative action within the meaning of Article 47 of the
Constitution? Our emphatic answer is no.
[139] We note that Parliament does exercise administrative powers

in some of its functions including investigations, recommendations,
and findings by its respective committees or approval of appointments
to public office. However, the process of legislating is not
administrative in character. As we outlined in Ethics and Anti-
Corruption Commission & Another vs. Tom Ojienda, SC T/a
Prof. Tom Ojienda & Associates Advocates & 2 Others (Petition
30 & 31 of [2019] (Consolidated)) [2022] KESC 59 (KLR) where we
delimited the scope of ‘administrative action’, and held as follows at
paragraph 57:
“By stipulating that the legislation so contemplated

has to among other things, promote efficient
administration, the Constitution leaves no doubt that
an “administrative action” is not just any action or
omission, or any exercise of power or authority, but
one that relates to the management of affairs of an
institution, organization, or agency. This explains why
such action is described as “administrative” as
opposed to any other action. The Concise Oxford
Dictionary (9th Ed) defines the word “administrative”
as “concerning or relating to the management of
affairs” Black’s Law Dictionary, (11 th Ed) defines
“administrative action” to mean “a decision or an
implementation relating to the government’s executive
function or a business’s management”. Burton’s Legal
Thesaurus (4th Ed) defines the adjective
“administrative” to mean among others, “directorial,
guiding, managerial, regulative, supervisory.”
[140]In essence, administrative action is the application or

implementation of law to specific factual circumstances, usually after
legislation has been enacted. Administrative powers, in this sense, are
generally lower-level powers exercised

after the legislative process. Put differently, the exercise of
administrative powers is the implementation of law, not its creation.
[141] In comparative practice, the question of whether the process

of enacting legislation amounts to ‘administrative action’ was
considered by the Constitutional Court of South Africa in Fedsure
Life Assurance Ltd vs. Greater Johannesburg Transitional
Metropolitan Council 1998 (12) BCLR 1458 (CC). In rejecting the
view that legislating amounted to administrative action, the Court
held at paragraph 42:
“The enactment of legislation by an elected local

council acting in accordance with the Constitution is,
in the ordinary sense of the words, a legislative and
not an administrative act. There is no “fit” between the
exercise of such powers by elected councillors and the
provisions of [section 24 in the Interim Constitution
on the right to administrative justice].”
[142] We agree with the above reasoning and reiterate that the
exercise of legislative powers does not amount to administrative
action, and Article 47(2) of the Constitution cannot be the basis for an
obligation on Parliament to provide reasons for accepting or rejecting
views gathered during the public participation process in the law-
making process.
[143] We have also considered Article 118(1) of the Constitution

and based on the textual markers therein, Parliament’s duty is to
“facilitate public participation and involvement in the legislative and
other business of Parliament and its committees.” As is plain from its
wording, this provision only imposes a duty to facilitate public
participation and involvement in the legislative process and therefore
cannot be the basis for the argument that the National Assembly is
under an obligation to provide reasons for accepting or rejecting
public views.

[144]We now turn to the question of whether this obligation arises
from the values and principles of governance stipulated in Article
10(2) of the Constitution. As noted earlier, it is Article 10(2) upon
which the Court of Appeal based its finding that Parliament is
obligated to provide reasons for accepting or rejecting public views.
[145] In addressing whether this duty arises from the national values
and principles of governance—particularly the values and principles
of transparency and accountability in Article 10(2)(c)—we consider,
first the nature of obligations arising from such values and principles.
In the Matter of the Principle of Gender Representation in the
National Assembly and the Senate (Advisory Opinions Application
2 of 2012) [2012] KESC 5 (KLR), this Court noted thus at paragraph
54:
“Certain provisions of the Constitution of Kenya have

to be perceived in the context of such variable ground-
situations, and of such open texture in the scope for
necessary public actions. A consideration of different
Constitutions shows that they are often written in
different styles and modes of expression. Some
Constitutions are highly legalistic and minimalist, as
regards express safeguards and public commitment.
But the Kenyan Constitution fuses this approach with
declarations of general principles and statements of
policy. Such principles or policy declarations signify a
value system, an ethos, a culture, or a political
environment within which the citizens aspire to
conduct their affairs and to interact among themselves
and with their public institutions. Where a
Constitution takes such a fused form in its terms, we
believe, a Court of law ought to keep an open mind
while interpreting its provisions. In such
circumstances, we are inclined in favour of an

interpretation that contributes to the development of
both the prescribed norm and the declared principle
or policy; and care should be taken not to substitute
one for the other. In our opinion, a norm of the kind in
question herein, should be interpreted in such a
manner as to contribute to the enhancement and
delineation of the relevant principle, while a principle
should be so interpreted as to contribute to the
clarification of the content and elements of the norm.”
[Emphasis added]
[146] In effect, this Court highlighted the need to avoid interpreting

broad constitutional values and principles, such as those articulated in
Article 10(2) of the Constitution as though they were prescribed
normative rules. Values and principles act as guiding frameworks,
outlining the considerations that duty bearers, such as Parliament,
should take into account when making decisions. However, they do
not define specific duties or actions. In this respect, values and
principles are inherently open-textured, meaning they provide
direction without prescribing exact steps to be taken by duty-bearers.
See in this regard Ronald Dworkin, Taking Rights Seriously
(Harvard University Press, 1978) p. 26; and Robert Alexy, A Theory
of Constitutional Rights (Oxford University Press, 2020) pp. 44-93;
and Marcelo Neves, Constitutionalism and the Paradox of
Principles and Rules (Oxford University Press, 2021) pp. 10-17.
[147] Based on this proposition, courts should be careful to

distinguish between values and principles on the one hand, and
normative rules on the other hand, to avoid overprescribing duties
from principles and values which are by nature open- textured. We
draw from the words of Robert Alexy, a Legal Philosopher in his
publication ‘Constitutional Rights and Proportionality’ (2014) 22
Revus - Journal for Constitutional Theory and Philosophy of Law 51, at
page 52 that:
“Rules are norms that require something definitively. They

are definitive commands. Their form of application is

subsumption. If a rule is valid and if its conditions of
application are fulfilled, it is definitively required that
exactly what it demands be done. If this is done, the
rule is complied with; if this is not done, the rule is
not complied with. By contrast, principles are
optimization requirements. As such, they demand that
something be realized ‘to the greatest extent possible
given the legal and factual possibilities.”
It follows that values and principles are optimizing commands that

allow duty bearers to come up with suitable measures for fulfilment of
the obligations that they impose, without dictating definitive or
specific actions that they ought to take.
[148] We therefore hold that, while there is no express obligation

on Parliament to provide reasons for accepting and/or rejecting
proposals/views made during a public participation exercise, as a
matter of good practice, it must nonetheless put in place reasonable
measures to guide how Parliament considers and treats the proposals,
views, suggestions, and comments received during such exercises.
Parliament should adopt reasonable measures to achieve this
objective.
(b) Did the National Assembly comply with its obligations

under Article 10(2)(c) of the Constitution to reasonably
ensure transparency and accountability in the manner it
processed public proposals, views, input and
suggestions regarding the Finance Bill, 2023?
[149] Considering the discretion vested in Parliament in fulfilling its

constitutional duties under the values and principles of governance

outlined in Article 10(2) of the Constitution, the role of the courts is
limited to reviewing whether the measures put in place by Parliament
are reasonable, and in conformity with the Constitution and law. With
this in mind, we now turn to examine whether the National Assembly
took reasonable steps to ensure transparency and

accountability in its consideration of proposals, views, and
suggestions arising from the public participation process in relation to
the Bill.
[150]In our view, for the National Assembly Committee’s Report to

meet the threshold of reasonable measures for promoting
transparency and accountability in the treatment of proposals from
public participation, it must be clear enough to enable those who
submitted their views to understand that their input was considered
and given due attention. Moreover, we agree with the proposal by
amicus curiae that Parliament is not required to respond individually
to every public comment or submission. Since public participation in
the legislative process typically raises certain core themes and
concerns, Parliament has the discretion to group similar views into
thematic areas and address them collectively.
[151] It is from this perspective that we will now assess the

National Assembly’s Departmental Committee on Finance and
National Planning’s ‘Report on the Consideration of the Finance Bill
(National Assembly Bill No. 14 of 2023)’ to determine whether it
meets the aforementioned standards. In other words, we must answer
whether the Committee’s Report serves as a reasonable feedback
mechanism that facilitates accountability and transparency in
providing the public with feedback on the fate of their proposals,
views, input, and suggestions during the public participation process.
[152] An examination of the Report by the Departmental

Committee on Finance and National Planning on the Consideration of
the Finance Bill (National Assembly Bill No. 14 of 2023), dated 13 th
June 2023, reveals an outline of submissions from stakeholders who
participated in the public participation exercise. The Report on page 9
indicates that the Committee received 1080 memoranda from
different stakeholders.
[153] In chapter three of the 260 paged Report, the Committee

responds to views from the stakeholders. In summary, this chapter
runs from page 21 to page 256 of the Report, a whopping 235 pages.
It contains a consideration of views from 161 persons and
organizations. It also contains a list of emails from different persons.

Under each of the 161 persons and organizations, the Report outlines the
proposal
made and the Committee’s observation on whether to accept or reject the
proposal.
[154]By way of example, we wish to highlight part of the responses

from the Committee. The Committee received more than 30 proposals
from Anjarwalla & Khanna LLP and it provided observations on
acceptance or rejection of each of the proposals. For instance, on the
proposal to delete clause 4 of the Bill, the Committee rejected the
proposal but amended the provision on the reason that increasing the
period of claiming foreign exchange losses from 3 years to 5 years
would provide enough time to claim the assets. Green Light provided
3 proposals, and the Committee offered its observations rejection of
two of the proposals and acceptance of one of the proposals. The Law
Society of Kenya provided more than 20 proposals, and the Committee
provided observations on each of the proposals. The Institute of
Economic Affairs made more than 10 proposals, and the Committee
provided observations on acceptance or rejection of each of the
proposals. PWC provided more than 10 proposals, and the Committee
provided observations for acceptance or rejection of each of the
proposals. This Court has taken note of the fact that this was the
approach that the Committee adopted in the Report for each of the
proposals that the various stakeholders made.
[155] For the email submissions, they are grouped in clusters with
the first cluster of 87 emails relating to submissions objecting to the
introduction of the Housing Levy; the second cluster of 2 emails are
those supporting the introduction of the housing levy; the third cluster
of 9 emails are those opposing the introduction of 16% VAT on fuel;
fourth cluster of 3 emails are those opposing the introduction of the
rate of 35% payee on income above Kshs. 500,000; and finally, the
fifth cluster of 137 emails calling for the rejection of the Finance Bill,
2023 in its entirety. In each of these clusters, save for the last cluster
calling for the rejection of the Bill in its entirety, the Committee
considered and made an observation on each of the proposals.

[156] To highlight the considerations of the email submissions by
the Committee, regarding the 87 emails submissions cluster objecting
to the introduction of the housing levy, the Committee made the
observation that it considered reducing the housing levy from 3% to
1.5%. The Committee also responded to 2 emails supporting the
introduction of housing levy on the account that it will create jobs.
The Committee also responded to 9 emails opposing the introduction
of 16% VAT on fuel. While rejecting their proposal the Committee
observed existing VAT rates were not standard and thus intended to
harmonize the rate to 16% including for petroleum products. Further,
the Committee responded to 3 emails opposing the introduction of
35% PAYE on income above Kshs 500,000. The Committee made the
observation that it had made an amendment that 32.5% PAYE would
be imposed on income between Kshs. 500,000 and Kshs. 800,000. For
amounts above Kshs. 800,000, 35% PAYE would be imposed. The
reason provided was to enable the government to raise money. The
Committee also acknowledged receipt of 137 emails relating to the
rejection of the Bill in its entirety.
[157]Having gone through the Report by the Departmental

Committee on Finance and National Planning with a fine-tooth comb,
we make the observation that to a large extent the Report strives to
explain the reasons for accepting or rejecting various proposals. As a
public document, it is accessible to members of the public, ensuring
that institutions and individuals who participate in public participation
exercises related to the Bill can access it.
[158] Further, despite the absence of an express requirement to

provide individual reasons for accepting or rejecting views received
during public participation, the Report by the Departmental
Committee on Finance and National Planning upholds the principles
of transparency and accountability as espoused under Article 10(2)(c)
of the Constitution. As the amicus noted, when Parliament receives
thousands of views during public participation, it may consider
clustering them into themes to address the concerns raised by the
people. Therefore, there is no

justification for imposing an additional burden on Parliament to
respond directly to each individual involved in the public participation
process.
[159]We therefore hold that there is no sufficient basis to invalidate a

public participation exercise on the grounds that Parliament did not
provide reasons to every individual participant on how their
proposals, suggestions, and input was treated. In the circumstances of
the case at hand, the National Assembly’s Departmental Committee
on Finance and National Planning’s ‘Report on the Consideration of
the Finance Bill (National Assembly Bill No. 14 of 2023)’ meets the
threshold of a reasonable measure that promotes transparency and
accountability in how the National Assembly treated the proposals,
views and suggestions from the public on the Finance Bill, 2023.
[160] Before concluding this section, it is important to note that to

enhance transparency and accountability in the law-making process,
the public should be able to track and monitor the legislative process
at every stage. As a Bill progresses through the various stages of the
law-making process, the public must be kept informed, and different
versions of the Bill should be made available for their review. This is
based on the understanding that access to information is essential for
ensuring transparency and accountability. For instance, there is
currently no mechanism for making the version of a Bill approved at
the Third Reading available to the public before it is presented to the
President for assent. We, therefore, recommend that Parliament
establish procedures to ensure that there is a mechanism to ensure all
versions of a Bill, at every stage of the law-making process, are
accessible to the public in a simple format for their information and
scrutiny.
[161] In the end we hold that the National Assembly, complied

with the duty to promote transparency and accountability in how it
dealt with the proposals, suggestions, views and input from the public
participation exercise on the Bill. We therefore allow the appeal on
this question and reverse the findings of the Court of Appeal and
substitute thereof with a finding that the National Assembly did not

violate Article 10(2)(c) of the Constitution in the consideration and
approval of the Bill.
v. Whether the Appropriation Act, 2023 contained the

Estimates of Revenue
[162] On this issue, the High Court noted that the 1 st-7th respondents
herein, who were petitioners in HC Petition No. E181 of 2023, contended
that the Appropriation Bill,2023 that was tabled before the National
Assembly did not contain estimates of revenue hence the budget was
incomplete, and the resultant Finance Act, unconstitutional. Specifically, by
their amended petition they averred that -
“47P. The Finance Act is enacted to authorise measures to

collect revenue estimates contained in the Appropriation
Act. Hence, the omission of estimates of revenue from an
Appropriation Act renders both the Appropriation Act and
the resultant Finance Act unconstitutional as the two laws
would contravene the express and very prescriptive
requirements of Articles 220(1)(a) and 221(1) of the
Constitution, which require the budget to contain revenue
estimates.
...
47R. The National Government’s Budget Estimates for the

FY 2023/2024 had a fatal anomaly to the extent that,
contrary to Articles 220(1) and 221(1) of the Constitution of
Kenya, 2010, they (the estimates) did not contain revenue
estimates. The estimates for recurrent and development
expenditure show that the budget is balanced and will be
financed by taxes, loans and grants. The expenditure
estimates declared show that the entire recurrent
expenditure and part of the development expenditure will be
financed by taxes. Only the deficit in the development
expenditure will be financed by loans and grants (i.e. in line
with the requirements in Article 220(1)(b) of the
Constitution, that estimates shall contain the

proposals for financing any anticipated deficit for the
Financial Year 2023/2024.
47S. Unfortunately, as stated elsewhere above, attempts by

the 1st petitioner (1st respondent herein) to have the National
Assembly cure the fatal anomaly were ignored, and the
National Assembly proceeded to approve an unconstitutional
2023/2024 national budget, then an unconstitutional
Appropriation Act, 2023 and finally an unconstitutional
Finance Act, 2023.”
[163] Consequently, they sought inter alia,
“122.1(i) The National Government’s Budget Estimates for the

FY 2023/2024 are void ab initio for lacking revenue estimates.
122.1(j) The annual Appropriation Act, 2023 is void ab

initio for lacking revenue estimates.
122.1 (k) The failure to meet the set constitutional

threshold on the contents of the budget, under Articles
220 (1)(a) and 221(1) of the Constitution voided the
2023/2024 budget-making process from that point
onwards.
122.1(l) Since Parliament did not, vide the

Appropriation Act, 2023, approve any estimates of tax
revenues to be collected from the public, there is no
basis for the same Parliament to enact any measures to
collect taxes vide the Finance Act, 2023.
122.1(m) The 2023/2024 budget estimates of the

national executive, and the Appropriation Act, 2023,
are void ab initio in their entirety for containing
ineligible expenditure.
122.1(n) The consideration and approval of incomplete
documents by the National Assembly compromised the
quality of public participation.”

[164] The High Court found that the estimates of revenue and
estimates of expenditure were part of the budget-making process.
Further, that although what it termed as a Bill containing the
estimates of revenue was not tendered before it, the court ascertained
that as part of the budget-making process, the estimates of revenue
were included in the approved estimates contained in the
Appropriation Bill and the Appropriation Act, 2023 as published in the
Kenya Gazette Supplement Nos. 87 of 15 th June, 2023 and 98 of 26th
June, 2023 respectively. Consequently, the High Court determined
that the assertion that there was a procedural flaw arising from want
of compliance with the requirement regarding estimates of revenue in
the budget process was without foundation and therefore rejected.
[165] Conversely, the Court of Appeal held that the High Court had
fallen into a grave error for arriving at the aforementioned conclusion.
The appellate court, on its part, pronounced itself as follows:
“206. It is admitted in the Hansard that by the time

the Finance Bill was coming up for Second Reading as
expressed by Hon. (Dr.) Otiende Amolo SC., the
Budget Proposals had not been done and the proposal
by the Cabinet Secretary had not been presented in
the House and that is the sole reason why Hon. (Dr.)
Otiende Amolo SC stood on a point of order on 15 th
June 2023 and posed a question which triggered the
Speaker’s ruling to the effect that the National
Assembly was obligated to prioritize the Finance Bill
over the presentation of a Budget Statement by the
Cabinet Secretary for the National Treasury. The
budget-making process is spelt out in Article 221 and
the provisions of the PFM Act reproduced earlier. The
only option is for the National Assembly to follow the
path carefully delineated by the Constitution and the
PFM Act. Any other path, no matter how expedient it
may be, is not

only unconstitutional, but it is littered with
substantive procedural flaws and highly impermissible
unconstitutional transgressions all of which will end
with an illegal outcome. Nothing good can come out of
an illegality, no matter how attractive it may be.
207.Accordingly, we find that the estimates of revenue

were not included in the Appropriation Bill and the
Appropriation Act, 2023 as published in the Kenya
Gazette Supplement Nos. 87 of 15 th June 2023 and 98
of 26th June 2023 respectively. It is also noteworthy
that as at 15th June 2023, the Cabinet Secretary,
National Treasury had not presented the Budget
Proposal, yet the Finance Bill, 2023 had been
introduced in the National Assembly and was at the
Second Reading. In the circumstance, we find that it
was a violation of Article 220(1) (a) and 221 as read
with sections 37, 39, and 40 of the PMF Act for the
Appropriation Bill/Act to be approved before the
Budget Proposal had been presented by the Cabinet
Secretary National Treasury in the National Assembly.
208. Consequently, for the above reasons, the resultant Act

had no legal foundation and was unconstitutional.”
[166] Based on the foregoing, it is necessary to determine the

procedure for the consideration of the estimates of revenue and
expenditure, and whether they should be included in an Appropriation
Bill.
[167] Article 220(1)(a) of the Constitution stipulates that estimates

of revenue and expenditure are mandatory elements of the budgets of

both the National and County Government. The provision provides as
follows:
“(1) Budgets of the national and county governments shall contain—

(a) estimates of revenue and expenditure,
differentiating between recurrent and development
expenditure; …”
[168] While Article 221 of the Constitution provides as follows:
“221.
1) At least two months before the end of each financial
year, the Cabinet Secretary responsible for finance shall
submit to the National Assembly estimates of the
revenue and expenditure of the national government for
the next financial year to be tabled in the National
Assembly.
2) The estimates referred to in clause (1) shall—

(a) include estimates for expenditure from the
Equalisation Fund; and
(b) be in the form, and according to the procedure,

prescribed by an Act of Parliament.
3) The National Assembly shall consider the estimates

submitted under clause (1) together with the estimates
submitted by the Parliamentary Service Commission and
the Chief Registrar of the Judiciary under Articles 127
and 173 respectively.
4) Before the National Assembly considers the estimates of

revenue and expenditure, a committee of the Assembly
shall discuss and review the estimates and make
recommendations to the Assembly.
5) In discussing and reviewing the estimates, the

committee shall seek representations from the public
and the recommendations shall be taken into account
when the committee makes its recommendations to the
National Assembly.
6) When the estimates of national government expenditure,

and the estimates of expenditure for the Judiciary and
Parliament have been approved by the National
Assembly, they shall be included

in an Appropriation Bill, which shall be introduced into
the National Assembly to authorize the withdrawal from
the Consolidated Fund of the money needed for the
expenditure, and for the appropriation of that money for
the purposes mentioned in the Bill.
7) The Appropriation Bill mentioned in clause (6) shall not

include expenditures that are charged on the
Consolidated Fund by this Constitution or an Act of
Parliament.” [Emphasis added]
[169]The PFM Act further elaborates this process. Section 36(1)

thereof places the role of managing the budget process at the national
level in the hands of the Cabinet Secretary. This is further elaborated
by Section 37 (1) which provides that the Cabinet Secretary shall
within a period allowing time to meet the deadlines specified in
Section 37 submit to Cabinet for its approval two things: budget
estimates and other documents supporting the budget; and the draft
bills required to implement the national budget. Section 37(2)
provides that the Cabinet Secretary shall submit to the National
Assembly by the 30th April in that year three crucial documents: the
budget estimates excluding those for Parliament and Judiciary (as
these are done by the respective accounting officers); documents
supporting the submitted estimates; and any other bills required to
implement the national government budget.
[170] As to the form and procedure these estimates are to take,

Article 221(2) (b) of the Constitution leaves this to be determined by
statute. Section 38(1)(b) of the PFM Act provides the format that
budget estimates shall include:
“
i. a list of all entities that are to receive funds
appropriated from the budget of the national

government;
ii. estimates of revenue allocated to, and expenditures

projected from, the Equalisation Fund over the
medium term, with an explanation of the reasons for
those revenue allocations and expenditures and how
these estimates comply with the policy

developed by the Commission on Revenue Allocation
under Article 216(4) of the Constitution;
iii. all revenue allocations to county governments from

the national government’s share in terms of Article
202(2) of the Constitution, including conditional and
unconditional grants;
iv. all estimated revenue by broad economic classification;
v. all estimated expenditure, by vote and by programme,

clearly identifying both recurrent and development
expenditures; and
vi. an estimate of any budget deficit or surplus for the

financial year and medium term and the proposed
sources of financing;
…”
[171] While Section 38(3) of the PFM Act requires the Cabinet
Secretary to ensure the expenditure appropriations and the budget
estimates in an Appropriation Bill are presented in a way that a) is
accurate, precise, informative and pertinent to budget issues; and b)
clearly identified the appropriations by vote and programme, Section
38 is also relevant as it outlines the other budgetary documents to be
submitted to the National Assembly alongside the budget estimates.
These include the budget summary which further contains a summary
of budget policies, an explanation of how the budget relates to fiscal
responsibility principles and financial objectives, and a memorandum
by the Cabinet Secretary explaining how the resolutions adopted by
the National Assembly on the Budget Policy Statement (BPS) under
Section 25(7) have been taken into account. Other documents also
include information regarding loans made by the National
Government, an estimate of principal, interest and other charges to be
received by the National Government in the FY in respect of those
loans; information regarding loans and guarantees made to and by the
National Government, an estimate of principal, interest and other
charges to be paid by the National Government in the FY in respect of
those loans; information regarding any payments to be made and
liabilities to be incurred by the National Government for which an
Appropriation

Act is not required which shall include the constitutional or national
legislative authority for any such payments or liabilities; and a
statement by the National Treasury specifying the measures taken by
the National Government to implement any recommendations made
by the National Assembly with respect to the budget for the previous
financial year(s).
[172] As for consideration by the National Assembly, the

Constitution provides that this is to happen at two levels: Article 221
(4) of the Constitution stipulates that before the National Assembly
considers the estimates of revenue and expenditure, a committee of
the Assembly shall discuss and review the estimates and make
recommendations. Article 221(6) goes on to provide that once the
estimates of expenditure by the National Government, Judiciary and
Parliament have been approved, they are then to be included in the
Appropriation Bill. This latter provision is silent on the estimates of
revenue. This position is supported by Section 37(9) of the PFM Act
which stipulates that once the budget estimates and other documents
have been approved by the National Assembly, the Cabinet Secretary
shall prepare and submit an Appropriation Bill of the approved
estimates to the National Assembly. While Section 39(1) and (2)
provides as follows:
“
1) The National Assembly shall consider the budget
estimates of the national government, including those of
Parliament and the Judiciary, with a view to approving
them, with or without amendments, in time for the
Appropriation Bill and any other relevant Bills, required
to implement the budget to be assented to by the 30 th
June each year.
2) Before the National Assembly considers the estimates of

revenue and expenditure, the relevant committee of the
National Assembly shall discuss and review the
estimates and make recommendations to the National
Assembly, taking into account the views of the Cabinet
Secretary and the public on the proposed
recommendations.”

[173] From the foregoing provisions, it is evident to us that the
estimates of revenue are not required to be presented in an
Appropriation Bill. The preparation and tabling of the estimates of
revenue before the National Assembly, precede the preparation and
tabling of the Appropriation Bill. Further, and in line with Sections 37
and 39 of the PFM Act, it is only after the National Assembly has
considered and approved the estimates of revenue and estimates of
expenditure that an Appropriation Bill and any other relevant Bills,
required to implement the budget and assented to by the 30th June is
prepared, tabled, and approved. Indeed, In the Matter of Council
of Governors when confronted with determining whether the
National Assembly can enact an Appropriation Act prior to the
enactment of the Division of Revenue Act, this Court held as follows:
“99. On the basis of the sequencing outlined in the

foregoing paragraph, we can derive a number of
conclusions. Firstly, the Appropriation Bill cannot be
introduced into the National Assembly, unless the
estimates of revenue and expenditure have been
approved and passed by that House. Secondly, the
Appropriation Bill comes into life after the Division of
Revenue Bill since the latter would already have been
introduced into Parliament at least two months before
the end of the financial year. Thirdly, the estimates of
revenue and expenditure must logically be based on or
at the very least be in tandem with, the equitable
share of revenue due to the National Government, as
provided for in the Division of Revenue Bill. Fourthly,
the Appropriation Act must be based on the equitable
share of revenue due to the National Government as

provided for in the Division of Revenue Act. Otherwise,
what would the National Government be
appropriating, if not its share as determined by the
latter? It is for this reason that even respective County
Governments, must prepare and adopt their annual

budget and Appropriation Bills, on the basis of the
Division of Revenue Bill passed by Parliament under
Article 218 of Constitution.”
[174] Arising from the afore stated provisions, it clear to us

that the estimates that eventually make it into the Appropriation
Bill are not the estimates of revenue. Rather, it is only the
estimates of expenditure. This is supported by the definition of an
appropriation act found at Section 2 of the PFM Act which
provides as follows:
“Appropriation Act” means an Act of Parliament or of a

county assembly that provides for the provision of money to
pay for the supply of services; …”
In any event, the purpose of an Appropriation Act is to provide for the

provision of money to pay for the supply of services, therefore the
estimates of revenue have no place in such an Act.
[175] The above position is further reinforced by Regulation 37 of

the Public Finance Management (National Government) Regulations
that provides as follows:
“Appropriation Bills shall provide for—
a) the Votes and programs of the financial year;
b) financial provision in respect of certain activities of the

national governments during that financial year; and
c) enabling the withdrawal out of the Consolidated Fund, or any

other national public fund.”
[176]Applying these provisions of the law to the facts before the

Court, our examination of the Hansard of the National Assembly
confirms that indeed the estimates of revenue were contained in a

document titled “Estimates of Revenue, Grants and Loans for the
Financial Year 2023/2024” which was tabled before the National
Assembly on 27th April, 2023. This was three days before 30th April,
2023

and therefore in line with the constitutional timelines of presentation
at least two months before the end of each FY. A further perusal of
the Hansard of the National Assembly revealed that the Report of the
Budget and Appropriations Committee on its consideration of the
Estimates of Revenue and Expenditure for the FY 2023/2024 was
tabled before the National Assembly on 6th June, 2023.
[177] Having read the Report, we note that paragraphs 20 and 21

thereof read as follows:
“20. With regard to revenue, the National Treasury has

maintained its BPS proposal of enhancing ordinary revenue
collection as a share of GDP from 15.1% in 2022/23 to 15.8%
in 2023/24. The ordinary revenue projection for FY 2023/24 is
Kshs. 2,571.2 bullion which represents a 17 percent increase
relative to the expected 2022/23 FY collection. The Committee
notes with concern that this revenue target is quite ambitious,
taking into account that historically, ordinary revenue has
grown at an average of around 10%. Further, the downward
revision of GDP growth projection is indicative of a
concomitant reduction in revenue collection.
21. The fiscal deficit including grants as a share of GDP is

expected to decline from 5.7 percent (Ksh.824.0 billion) in
2022/23 to 4.1 percent (Ksh.663.5 billion) in 2023/24. The
committee notes however, that this projected reduction in the
deficit is partially attributed to an ambitious projection in tax
revenue collection. Should the revenue collection target not
materialize, it will necessitate a downward revision in
expenditure through a supplementary budget.”
[178] Though the focus above was primarily placed on the estimates
of expenditure, it confirms that the estimates of revenue were
considered by a Committee of the Assembly in line with Article 221(4)
of the Constitution. From the Hansard of the National Assembly, this
Report of the Budget and Appropriations Committee on Budget
Estimates for the National Government, the

Judiciary and Parliament for the Financial Year 2023/2024 was
debated extensively before it was finally adopted by the National
Assembly on 8th June, 2023. It is these estimates of expenditure that
then formed the Appropriation Bill, 2023 that was tabled before the
National Assembly on 20th June, 2023 and thereafter passed by the
National Assembly on 22nd June, 2023 and assented to by the
President on 26th July, 2023.
[179] Sections 39A and 40 of the PFM Act on their part provide the
pathway that the Finance Bill takes. Section 39 provides as follows:
“39A. Submission, consideration and passing of Finance Bill
1) The Cabinet Secretary shall submit to the National

Assembly, on or before 30th April, the Finance Bill setting
out the revenue raising measures for the National
Government.
2) Following submission of the Finance Bill by the Cabinet

Secretary, the relevant committee of the National
Assembly shall introduce the Bill in the National
Assembly.
3) The National Assembly shall consider and pass the

Finance Bill, with or without amendments, in time for it
to be presented for assent by 30th June each year.
4) Any recommendations made by the relevant committee

of the National Assembly or resolution passed by the
National Assembly on revenue matters shall—
a. ensure that the total amount of revenue raised is

consistent with the approved fiscal framework;
b. take into account the principles of equity, certainty

and ease of collection;

c. consider the impact of the proposed changes on the
composition of the tax revenue with reference to
direct and indirect taxes;
d. consider domestic, regional and international tax trends;
e. consider the impact on development, investment,

employment and economic growth;
f. take into account the recommendations of the Cabinet

Secretary as provided under Article 114 of the
Constitution; and
g. take into account the taxation and other tariff

arrangements and obligations that Kenya has ratified,
including taxation and tariff arrangements under the
East African Community Treaty.”
[180] Section 40 in addition provides as follows:
“40. Submission and consideration of budget policy

highlights and the Finance Bill in the National Assembly
1) Each financial year, the Cabinet Secretary shall, with

the approval of Cabinet, make a public pronouncement
of the budget policy highlights and revenue raising
measures for the national government.
2) In making the pronouncement under subsection (1), the

Cabinet Secretary shall take into account any regional
or international agreements that Kenya has ratified,
including the East African Community Treaty and
where such agreements prescribe the date when the
budget policy highlights and revenue raising measures
are to be pronounced, the Cabinet Secretary shall
ensure that the measures are pronounced on the
appointed date.

3) On the same date that the budget policy highlights and
revenue raising measures are pronounced, the Cabinet
Secretary shall submit to Parliament a legislative
proposal, setting out the revenue raising measures for
the national government, together with a policy
statement expounding on those measures.
4) Following the submission of the legislative proposal of

the Cabinet Secretary, the relevant committee of the
National Assembly shall introduce a Finance bill in the
National Assembly.
5) Any of the recommendations made by the relevant

committee of the National Assembly or adopted by the
National Assembly on revenue matters shall—
a. ensure that the total amount of revenue raised is

consistent with the approved fiscal framework and
the Division of Revenue Act;
b. take into account the principles of equity, certainty

and ease of collection;
c. consider the impact of the proposed changes on the

composition of the tax revenue with reference to the
direct and indirect taxes;
d. consider domestic, regional and international tax trends;
e. consider the impact on development, investment,

employment and economic growth;
f. take into account the recommendations of the

Cabinet Secretary as provided under Article 114 of

the Constitution; and

g. take into account the taxation and other tariff
agreements and obligations that Kenya has ratified,
including taxation and tariff agreements under the
East African Community Treaty.
6) The recommendations of the Cabinet Secretary in

subsection (5)(f) shall be included in the report and
tabled in the National Assembly.”
[181] Based on the foregoing, two things are apparent. First, the
enactment of an Appropriation Bill is in no way tied to that of a
Finance Bill. The submissions by counsel for the appellants are
correct with respect to the pathways of the Finance Bill and the
Appropriation Bill being different. Second, the estimates of revenue
are also not included in the Finance Bill.
[182] Consequently, we agree with the Court of Appeal to the

extent that we find that the estimates of revenue were not included in
the Appropriation Bill and the Appropriation Act, 2023 as published in
the Kenya Gazette Supplement Nos. 87 of 15th June 2023 and 98 of
26th June 2023 respectively. Our point of divergence with the Court of
Appeal, is that it is not a legal requirement that the estimates of
revenue be included in the Appropriation Bill or Act. Rather, they are
to be considered and approved alongside the estimates of expenditure
by the National Assembly, before the Appropriation Bill. Once
approved, the Appropriation Bill is prepared and contains estimates of
expenditure.
[183] Accordingly, we allow the Appellant’s appeal on this question

and make a finding that the National Assembly followed the
prescribed procedure in enacting the Appropriation Act, 2023.
vi. Whether the question of the validity of Section 84 of the

Finance Act, 2023 (Affordable Housing Levy) is moot
[184] The issue of the affordable housing levy originated in the trial
court in
Petition No. 181 of 2023 filed by the 1st respondent. The said levy was

introduced by Section 84 of the Act which amended Section 31 of the
Employment Act and introduced Section 31B therein. The levy was
challenged on the grounds that such a levy/tax was not contemplated
under Article 209(1) of the Constitution; there was no legislative
framework to guide the administration of the said levy or criteria for
determining who is entitled to benefit from the same; the levy was
discriminatory as far as it was to be imposed only on employees in
formal employment; the 5th appellant’s mandate did not include the
collection/receipt of such a levy, and that the Cabinet Secretary,
Ministry of Lands, Public Works, Housing and Urban Development
could not give KRA such mandate as purported by the public notice
dated 3rd August, 2023 in a local daily, amongst others.
[185] In determination of this issue, the High Court found that the
housing levy supported the national policy on affordable housing and
that the said policy did not interfere with the functions of the county
government. However, the High Court found that the levy lacked a
comprehensive legal framework by virtue of being introduced through
an amendment of the Employment Act, which was in violation of
Articles 10, 201, 206 and 210 of the Constitution. Moreover, the trial
court held that the imposition of the housing levy against persons in
formal employment to the exclusion of other non-formal income
earners to support the national housing policy was without
justification, unfair, discriminatory, irrational, and arbitrary and in
violation of Articles 27 and 201(b)(i) of the Constitution. Equally, it
was held that the levy was not one of the taxes that the 5th appellant is
empowered to collect; and the notice issued by the 5 th appellant
informing the public that it had been appointed by the Cabinet
Secretary, Ministry of Lands, Public Works, Housing and Urban
Development to collect the housing levy did not have any legal basis

under the Kenya Revenue Authority Act.
[186] Subsequent to the decision of the High Court, in December

2023, the Affordable Housing Bill (National Assembly Bills No. 75 of
2023) was tabled before the National Assembly to address the
concerns raised by the High Court. The Bill went through the
legislative process, received Presidential assent on 19 th March,

2024 and commenced on 22nd March, 2024. The Court of Appeal found
that the Affordable Housing Act was necessitated by the High Court
judgment. Further, that the concerns observed by the High Court had
been addressed by the Affordable Housing Act. Consequently, the
appellate court was satisfied that there was no live controversy on the
question of the constitutionality of Section 84 of the Act as the
concerns raised had been rendered moot by the enactment of the
Affordable Housing Act.
[187] Now before us, the 1st and 2nd appellants argue that despite
the enactment of the Affordable Housing Act, the legal questions
arising from the findings on the affordable housing levy introduced in
the Act still warrant this Court’s consideration; and the underlying
legal issue remains significant for the reason that finance laws will
continue to be enacted in the future. Therefore, they invited this Court
to find that the Court of Appeal acted in error and that this issue is
alive and should be determined.
[188] This Court has addressed the doctrine of mootness in the

case of Institute for Social Accountability & Another vs.
National Assembly & 3 0thers (Petition 1 of 2018) [2022] KESC 39
(KLR) where we expressed that:
“A matter is moot when it has no practical significance

or when the decision will not have the effect of
resolving the controversy affecting the rights of the
parties before it. If a decision of a court will have no
such practical effect on the rights of the parties, a
court will decline to decide on the case. Accordingly,
there has to be a live controversy between the parties
at all stages of the case when a court is rendering its
decision. If after the commencement of the
proceedings, events occur changing the facts or the
law which deprive the parties of the pursued outcome
or relief then, the matter becomes moot.”

[189] Subsequently, in the case of Dande & 3 Others vs.
Inspector General, National Police Service & 5 0thers (Petition 6
(E007), 4 (E005) & 8 (E010) of 2022 (Consolidated)) [2023] KESC 40
(KLR) we held that:
“The doctrine of mootness requires that controversy

must exist throughout judicial proceedings including
at the appellate level. An appeal or an issue is moot
when a decision will not have the effect of resolving a
live controversy affecting or potentially affecting the
rights of parties. Such a live controversy must be
present not only when the action or proceeding is
commenced but also when the court is called upon to
reach a decision. The doctrine of mootness is therefore
based on the notion that judicial resources ought to be
utilized efficiently and should not be dedicated to an
abstract proposition of law and that courts should
avoid deciding on matters that are abstract, academic,
or hypothetical.”
[190]Bearing these principles in mind, has the actual and substantial

dispute regarding the affordable housing levy been resolved or spent,
thus making the issues purely academic? As correctly noted by the
Court of Appeal, the issue of the affordable housing levy was a live
controversy before the High Court. However, taking a cue from the
decision rendered by the High Court, the National Assembly sought to
remedy the pitfalls noted by the court by entrenching the affordable
housing levy in legislation to wit, the Affordable Housing Act. The
purpose of the Act was to give effect to Article 43(1) (b) of the
Constitution; to provide a framework for development and access to
affordable housing and institutional housing. However, by the time the
dispute was at the Court of Appeal, the Affordable Housing Act was
already in force. It follows that by the subsequent enactment of the
Affordable Housing Act, all issues relating to the affordable housing
levy were overtaken by the subsequent legislation. As such, we find
that

by the time the Court of Appeal was considering the consolidated
appeal before it, there was no live issue relating to the affordable
housing levy. Had the Court of Appeal, for instance, made any findings
on the legal framework of the levy or the discriminative nature of the
levy as contended by the parties or even the fact that the 5 th appellant
had been designated to collect the levy, that decision would have been
in vain as there would have been no practical effects on the rights of
the parties.
[191] We understand the 1st and 2nd appellants to be arguing that

because a Finance Act will always be enacted in the future with
subsisting affordable housing legislation in place, it then becomes
necessary for this Court to determine the underlying issue. In our
considered view, this would in a strict sense amount to placing the
cart before the horse and pre-empting what the Legislature would
enact as law. For good order, the only sensible approach would be to
challenge that particular provision in court as and when such an issue
would arise, bearing in mind that courts do not make orders in vain or
decide on matters that are abstract, academic, or hypothetical.
Finally, we are also alive to the fact that the Affordable Housing Act is
subject of HC Petition No. E154, E173, E176, E181, E191 of
2024, which, at the time of the hearing of this consolidated appeal,
was pending before the High Court. However, in the course of
penning down this judgment, the High Court delivered its judgment
on the said matter. In the circumstances, the less we say about it the
better as the avenue of lodging an appeal against the High Court
decision is still open to the parties therein.
vii. Whether a court has jurisdiction to test the legality of

policy positions taken by the Executive and Parliament
in the legislative process; and if so, whether the
impugned sections of the Finance Act, 2023 relating to
various tax legislations are unconstitutional
[192] The 1st and 2nd appellants contended that taxation measures
contained in the Act were an exercise of executive policy
formulation by the National

Government, an exclusive power and function related to national
economic policy and planning set out in the Fourth Schedule to the
Constitution. To them, the dispute involves a policy matter relating to
taxation hence is non-justiciable, resolvable as a political dispute in
Parliament to the exclusion of the court. Accordingly, provisions in the
Act on amendments to the Income Tax Act, Tax Procedures Act, the
Betting, Gaming and Lotteries Act, the Kenya Roads Act, the
Employment Act and the Statutory Instruments Act were all
construable to be within public policy, and therefore within the
legislative remit of the National Government. The introduction of the
housing levy was particularly rationalised as a policy decision to
address affordable housing deficit in the country as contemplated
under Article 209 as read with Section 7(3)(a) of the Housing Act.
[193] The High Court found favour with this argument asserting
that courts have been slow to interfere with tax legislations in view of
the merger of policy and legislation. The court was persuaded with
the findings in State of MP vs. Rakesh Kohli & Another AIR 2012
SCC 2351 (11 May, 2012) and in Waweru & 3 Others (suing as
officials of Kitengela Bar Owners Association) & Another vs.
National Assembly & 2 Others; Institute of Certified Public
Accountants of Kenya (ICPAK) & 2 Others (Interested Parties)
[2021] KEHC 9748 (KLR).
[194] Weighing the specific provisions of the Act in so far they

adumbrate policy decisions on taxation as against the High Court’s
duty under Article 165(3)(b)(d)(i) and (ii) of the Constitution the court
was categorical that neither laws nor policies are immune from
scrutiny by the court.
[195] Eventually, the High Court considered each of the provisions

of the Act and concluded that Section 26 thereof amending the Third
Schedule of the Income Tax Act relating to withholding tax bands;
Section 7 amending Section 10 of the Income Tax Act relating to
withholding tax; Section 33 amending Section 17 of the VAT Act to
introduce 16% VAT on insurance compensation and Part II; Sections
30 to 38 of the Act which amended Sections 5, 8, 12, 17, 31, 34, 43,
First and Second Schedule

of the VAT Act imposing varying or removing VAT on specific goods
and services and varying the VAT rates applicable and how VAT Tax
would administered, were mere policy choices of the National
Government that did not warrant the court’s intervention.
[196] This finding was challenged before the Court of Appeal by

way of a cross- appeal by the 15 th - 22nd respondents. The gist of their
cross-appeal was that it faulted the High Court for misinterpreting
Articles 10 and 165 (3) of the Constitution on its jurisdiction to test
the constitutionality of anything including policy, and finding that the
Act was “a policy” and not “a law” over which the court had
jurisdiction. The High Court was further faulted for holding that in
view of the merger of policy and legislation, it had no jurisdiction to
interfere with tax legislation, contrary to the principles of public
finance, equal protection of law, fairness and judicial authority under
Articles 10, 27,159 165, 201 and 259; and for adopting an economic
policy which does not reflect the financial status of the majority. A
further argument was made of the abdication by the High Court of its
jurisdiction to test the constitutionality of “anything” including policy
said to infringe the Constitution. Reliance was placed on Kenya Tea
Growers Association & 2 Others vs. The National Social
Security Fund Board of Trustees & 13 Others [2024] KESC 3
Page 38 of 120 (KLR) in which the Supreme Court affirmed the High
Court’s jurisdiction under Article 165 of the Constitution.
[197]In its judgment, the Court of Appeal found that the High Court
had misinterpreted Articles 10 and 165(3) of the Constitution
effectively abdicating its jurisdiction to test the constitutionality of
‘anything’, including policy said to infringe the Constitution. A court
ought not to intervene in matters policy where the relevant State
organ acts within the law. Accordingly, the High Court was found to
have erred in making a blanket statement suggesting that courts
ought not to intervene in all policy matters. Despite this finding, the
notices of cross appeal by

the 15th -19th & 22nd and 38th to 49th respondents and Civil Appeal No.
E064 of 2024 were held to be devoid of merit and were dismissed.
[198] The issue has now found itself before this Court and as a
ground of appeal, the Court is being called upon to pronounce itself of
the High Court’s jurisdiction to test the legality of policy decisions
taken by the Executive and Parliament in the legislative process; and
if so, whether the impugned sections of the Act relating to various tax
legislations are unconstitutional. From the above context, there
appears to be a consensus from the parties that courts have
jurisdiction to intervene in policy matters, which are in the exclusive
jurisdiction of the Executive and the Legislature. However, this
jurisdiction is confined to allowing the other arms of government the
liberty to carry out their mandates without unnecessary judicial
intervention. The superior courts below properly appraised this
jurisdiction in their respective judgments.
[199] The point of departure appears to be the extent and

applicability of the said jurisdiction to the present dispute. Several
fronts have been presented. First, there is an argument on whether a
court can intervene where a policy is exclusively challenged without
the resultant legislative framework. That is to say, can a policy be
challenged where the policy has not been converted into a legal
instrument in statute? Secondly, and specific to the present matter,
the extent of the circumscribed jurisdiction. Under this limb, there are
competing schools of thought on the court’s involvement, based on
existing jurisprudence. There are instances of total deference where
the court steers clear of making any pronouncements on policy
matters and other instances of what was termed by one of the parties
herein as total interference where the court not only countermands
the policy but goes further to substitute it with its own preference.
[200] Governments operate through policy directives made at various
levels. As we noted in Communication Commission of Kenya & 5
others v Royal Media Services Limited & 5 others (Petition 14,
14A, 14B & 14C of 2014 (Consolidated))[2014] KESC 53 (KLR) (29
September 2014) (CCK Case):

“[285] The Policy document is a general statement of
aspirations which the Government wished to commit,
or had committed itself to. Judicial notice has to be
taken of the fact that the Government, in the normal
discharge of its duties, does churn out policy
statements, guidelines, and sessional papers as
frameworks within which to conduct public affairs,
and to deliver goods and services to the people.”
Part 1 of the Fourth Schedule to the Constitution sets out the

functions of the National Government which includes formulating
policies on various aspects like the national economic policy and
planning, education, housing, and energy. While some of the policies
are founded on the constitutional imperatives deriving from the above
functions, others are made pursuant to legislative requirements. For
instance, within the ICT sector, the Kenya Information and
Communications Act, (Cap 411A) under Section 5A empowers the
Minister to issue to the Communication Commission of Kenya policy
guidelines of a general nature, relating to the provisions of the Act.
[201] On the other hand, the national values under Article 10 of

the Constitution apply to State organs, state officers, public officers
when they make or implement public policy decisions. Article 232 of
Constitution on values and principles of public service includes
involvement of the people in the process of policy making.
[202]As the parties noted, the courts have previously grappled with
challenges to the policy measures including the apex court. In the
CCK Case, the issue revolved around the implementation of the ICT
policy and Task Force Report by the State officers, public officers and
others. In our judgment, we appreciated the statutory duty of the
Minister to issue policy guidelines under Section 5A of the Kenya
Information and Communications Act. Though we considered
allegations of violations of the Constitution, we exercised restraint by
not only referring the matter back to the policy makers to re-evaluate
the policy issues in contention, but

also directed the judgment to be delivered to the Clerks of the
National Assembly and the Senate for possible legislative
intervention.
[203] In Martin & 106 Others vs. Engineers Registration Board

& 7 others; Egerton University & Another (Interested Parties)
(Petition 19 of 2015 & 4 of 206 (Consolidated) [2018] KESC 54 (KLR)
this Court was more erudite in elucidating the court’s circumscribed
jurisdiction in matters policy in the following terms:
“As a court, we agree that when it comes to matters of

policy formulation, we have a very minimal role to
play, in matters education and especially professional
training. However, we are cognizant of the fact that
where such policy decisions affect the fundamental
rights and freedoms protected by the Constitution,
then those actions invite this Court and courts in
general to intervene and safeguard those rights and
freedoms. In this regard, see Community Advocacy and
Awareness Trust & 8 Others vs. Attorney General & 6
Others [2012] eKLR where it was held that the court is
not the appropriate forum for issuing guidelines.”
[Emphasis added]
In that case, the Engineers Registration Board (the Board) had argued
that the degrees the petitioners held were not from universities
accredited to issue engineering degrees. No evidence has been
tendered that even, had the Board correctly interpreted its mandate,
the petitioners, or some of them would not have qualified to be
registered. All this situation arose out of the transition of a campus
into a fully-fledged University while the petitioners were still
Petition Nos. E031, E032 & E033 of Page 110 of

undertaking their undergraduate studies in Engineering. Taking into
account the unique situation of the circumstances, we were
constrained to direct the Board to register the petitioners as
engineers

[204] In a subsequent case of Moi University vs. Zaippeline &
Another (Petition 43 of 2018) [2022] KESC 29 (KLR), we were also
urged not to descend into the arena of policy-making. This Court
reiterated its legal position on non- justiciability of matters involving
policy by stating as follows:
“As we conclude, we note that the appellant urged us,

just as was the case before the superior courts below,
not to descend into policy making. Like the superior
courts below, we are aware of the legal position on
non-justiciability of matters involving issues of policy
in academic matters and/or elsewhere, which are left
to the bodies entrusted therewith by statute or
regulations.” [Emphasis added]
The Court has also previously expressed itself on non-justiciability of a

case based on the political question doctrine in the context of
separation of powers doctrines. (See Mitu-Bell Welfare Society v
Kenya Airports Authority & 2 others; Initiative for Strategic
Litigation in Africa (Amicus Curiae) (Petition 3 of 2018) [2021]
KESC 34 (KLR).
[205] To rehash our position in Institute for Social Accountability

Case, separation of powers ought not to be treated or viewed as an
end in itself but aimed at the fulfilment of the form of governance and
vision of the state that Kenyans aspired to as represented in the
national values and principles of governance under Article 10 of the
Constitution. This makes the question as to whether the legislative
structure of an institution reinforces/promotes or detracts from the
national values and principles articulated in the Constitution to have a
bearing on whether the separation of powers is violated or not. See In
the Matter of the Principle of Gender Representation, at
paragraph 54.
[206] Given the foregoing analysis, in the Institute for Social

Accountability Case we adopted a two-pronged test to assess
whether a particular allocation of mandate, function, or power to a
public agency or institution amounts to an unconstitutional intrusion
that threatens or violates the

separation of powers. The two limbs of the test are: (a) whether the
mandate, functions or powers of the subject state agency, or
institution unjustifiably strays into the nucleus, core functions, or pre-
eminent domain that are the exclusive competence of another branch
of government from a functional point of view; and
(b) whether the exercise of the subject assigned mandate, functions,
or powers will harm or threaten the realization of the national values
and principles articulated in the Constitution.
[207]In South Africa, it is generally accepted that executive

government policies are better challenged politically and not
judicially. In National Treasury & 5 Others vs. Opposition to
Urban Tolling Alliance & 4 Others [2012] ZACC 18 the
Constitutional Court stated as follows:
“[93] It is undisputed that in July 2007 the Cabinet

approved the Gauteng Freeway Improvement Project
and the concomitant basis for its funding, e-tolling,
after extensive investigation and a report to it on the
issue. It is national executive and treasury policy not
to use fuel levy- type funding for these kinds of
projects. None of this was, or could be, attacked on
review in this Court. The playing field for the
contestation of executive government policy is the
political process, not the judicial one.”
[208] The Constitutional Court of South Africa has proceeded to

demarcate the courts’ role in reviewing policy questions in
International Trade Administration Commission vs. SCAW
South Africa (Pty) Limited 2012 (4) SA 618 (CC) at paragraph
95 thus:
“Where the Constitution or valid legislation has
entrusted specific powers and functions to a particular
branch of government, courts may not usurp that
power or function

by making a decision of their preference. That would
frustrate the balance of power implied in the principle
of separation of powers. The primary responsibility of
a court is not to make decisions reserved for or within
the domain of other branches of government, but
rather to ensure that the concerned branches of
government exercise their authority within the bounds
of the Constitution. This would especially be so where
the decision in issue is policy-laden as well as
polycentric.”
[209] Our position therefore remains what we have consistently

stated in the decisions we have made reference to, that as a rule of
thumb, courts should restrain from intervening in policy matters.
However, the High Court under Article 165 of the Constitution retains
residual jurisdiction to test the constitutionality of policy decisions,
whether or not translated into laws, as we observed in Kenya Tea
Growers Association Case:
“Having said so, we have to emphasize that the High

Court retains the residual jurisdiction to determine
whether any law is inconsistent with the Constitution
within the meaning of Article 165, bearing in mind the
provisions of Article 165(5)(b). It must also be
restated that the High Court (as between it and courts
established under Article
162 of the Constitution), has the original and exclusive
jurisdiction (without exception) to hear and determine
applications for redress of denial, violation, or
infringement of rights and fundamental freedoms in
the Bill of Rights pursuant to Articles 22
and 23 of the Constitution (See Supreme
Court Judgment in the County Assemblies Forum v
Attorney General & others; Pet No 22 of 2017, at
Paragraph 56).” [Emphasis added]

This means that while the courts should exercise judicial restraint, the
framers of the Constitution made it possible for litigants to not only
approach court, without exception, for redress of fundamental
freedoms in the Bill of Rights but also to invoke the residual
jurisdiction in respect of interpreting the Constitution and
determining whether any law or anything said to be done under the
authority of the Constitution is inconsistent with or contravenes the
Constitution. We need not re-emphasize the transformative nature of
our Constitution particularly the context and foundation within which
it was promulgated.
[210] From the above rendition of the law, it is evident that

constitutional challenge is not limited to the laws enacted but extends
to anything done under the Constitution and the exercise of
constitutional powers. Just like the doctrine of constitutional
avoidance, exhaustion of existing mechanisms and non- justiciability,
it is only when the court has been moved that it should make an
inquiry into whether it should exercise its jurisdiction as sought and if
so to what extent. This inquiry should bear in mind the unlimited
reliefs contemplated under Article 23 of the Constitution in relation to
the enforcement of the Bill of Rights. In doing so, the courts would be
able to contemplate whether a policy directive under challenge passes
the constitutional muster.
[211] In our view therefore, nothing turns on whether a policy is

manifested through a law or flows from a given policy, as a policy may
be made pursuant to a statutory requirement. What remains evident is
that the National Government and Parliament are bestowed with
constitutional mandates and functions on one hand, and the courts
with the mandate of interpreting or testing them against the
Constitution on the other hand. These are distinct but interdependent

roles that have to be undertaken under the current design of the
Constitution. Since all arms of government serve the same people, the
policy makers through exercise of public participation should
endeavour to make policies that are consistent with the Constitution
and resonates with the people.

[212] Where the courts intervene, they should strive to sustain policy
recommendations by the Executive and Legislature except in
situations where the policy is outrightly unconstitutional and remedial
measures need to be taken in the meantime, especially in the realm of
public policy.
[213] Turning to the present case, we note that the Act by its very
nature is a testament of the national economic policy and planning
contemplated under the Fourth Schedule. It contains the governments
revenue raising measures for the upcoming financial year being an
annual statutory and constitutional process of budgeting. While this
may be seen as the National Government’s own policies that it seeks
to implement, it is reduced into the legislative proposals set out in a
Finance Act. On the face of it, the provisions contain proposals for tax
and related revenue raising proposals affecting different existing
statutes. We do not therefore envisage a situation where a process
undertaken in furtherance of constitutional requirements and the
proposed amendments to various statutes can be inoculated from a
constitutional challenge on account of being a policy matter. In this
instance, the challenge to the legal provision impliedly amounted to a
challenge of the National Government policy.
[214]Courts have previously struck down statutes for being

unconstitutional despite being a representation of the underlying
policy by the National Government. From the record, we are satisfied
that the High Court’s finding on its jurisdiction under Article 165 of
the Constitution notwithstanding, it went ahead to consider the
specific provisions under challenge as amounting to policy matters,
ultimately satisfying itself on the constitutionality of each of them. On
its part, the Court of Appeal, despite finding that the High Court
abdicated its jurisdiction under Article 165 of the Constitution did not

overturn these findings on the constitutionality of the said provisions.
In dismissing the cross appeal by the 15 th - 19th & 22nd respondents,
the Court of Appeal affirmed the High Court’s findings on
unconstitutionality. We see no reason to interfere with these findings
by the

superior courts below and take it that the two courts meant the same
thing albeit
expressed in a semantically different manner.
[215] Having pronounced ourselves as herein above, the 15 th -19th &

22nd respondents’ cross appeal before this Court, in so far as they
sought a declaration that the Act violates Articles 10, 21(3), and 201
of the Constitution, is dismissed. The said cross appeal consequently
fails.
viii. What considerations should a Court take into account

in declaring a statute unconstitutional and what
consequential orders ought a court issue upon making a
declaration of unconstitutionality of a statute or parts
thereof
[216]The Supreme Court of India in the case of Government of

Andhra Pradesh & Others vs Smt. O. Laxmi Devi Civil Appeal No.
8270 of 2001 held at paragraph 36 that invalidating an Act of the
Legislature is a serious step that should be taken with extreme
caution since it “thwarts the will of the representatives of the
people; it exercises control, not on behalf of the prevailing
majority, but against it.” The court further relied on the journal
article by Prof. James Bradley Thayer, ‘The Origin and Scope of the
American Doctrine of Constitutional Law’ Harvard Law Review,
1893. Professor Thayer recognizes that a court has the power to
declare a statute unconstitutional. However, in view of the doctrine of
separation of powers, he cautions that a court should only declare a
statute as being unconstitutional where that is the only rational
answer so that there is no doubt that indeed the material statute is
unconstitutional. The Supreme Court of India adopted this rationale
so much so that the Court held that where there could be two views
whether the statute could be constitutional or unconstitutional, the
latter must prevail. The wisdom or unwisdom, justice or injustice of
the law of the statute is not for the court to determine, as long as the
Legislature acted within its scope of mandate.

[217] We are persuaded by the foregoing rationale as Kenya is a
democracy. Article 1(2) of the Constitution provides that the People of
Kenya may exercise their sovereign power either directly, or
indirectly through their democratically elected representatives.
Therefore, any legislation enacted is deemed to be responsive to the
needs of the people. The legislation in question should always be
viewed against the prism that the laws were enacted to cure a
problem. This then informs the foundation that a legislation or a
provision thereof will be deemed to be constitutional, unless
otherwise proved.
[218] In Law Society of Kenya vs. Attorney General & Another,

SC Petition No. 4 of 2019 [2019] KESC 16 (KLR), we set out the
parameters for declaring a statute or a provision thereof as being
unconstitutional. The parameters are as follows:
“
i. There is a general rebuttable presumption that
all laws conform to the Constitution. The onus to
prove otherwise is on the party so alleging.
ii. There is a general presumption that when

enacting the legislation in question, the
Legislature was alive to the needs of Wanjiku.
Therefore, the law as formulated reasonably
meets those needs.
iii. The true essence of the statute -purpose and

effect of a statute and/or statutory provision must
be considered. It entails discerning the intention
of the drafters and the Court can consider the
historical background of the said law.”

[219] Likewise, the Supreme Court of India in State of M.P. vs.
Rakesh Kohli & Another, Civil Appeal No. 684 of 2004 restated the
guidelines as follows:

“
a. That a law may be constitutional even though it
relates to a single individual if on account of some
special circumstances or reasons applicable to him
and not applicable to others, that single individual
may be treated as a class by himself;
b. That there is always a presumption in favour of the

constitutionality of an enactment and the burden is
upon him who attacks it to show that there has been
a clear transgression of the constitutional
principles;
c. That it must be presumed that the Legislature

understands and correctly appreciates the need of
its own people, that its laws are directed to
problems made manifest by experience and that its
discriminations are based on adequate grounds;
d. That the legislature is free to recognize decrees of

harm and may confine its restrictions to those cases
where the need is deemed to be the clearest;
e. That in order to sustain the presumption of

constitutionality the Court may take into
consideration matters of common knowledge,
matters of common report, the history of the times
and may assume every state of facts which can be
conceived existing at the time of legislation; and
f. That while good faith and knowledge of the existing

conditions on the part of a Legislature are to be

presumed, if there is nothing on the face of the law
or the surrounding circumstances brought to the
notice of the

Court on which the classification may reasonably be
regarded as based, the presumption of
constitutionality cannot be carried to the extent of
always holding that there must be some undisclosed
and unknown reasons for subjecting certain
individuals or corporations to hostile or
discriminating legislation.”
[220] It follows therefore from the above holdings that, the proper
procedure before reaching such a manifestly far-reaching finding, is
for there to have been a specific plea for unconstitutionality raised
before the appropriate court. This plea must also be precise to a
section or sections of a definite statute. The court must then juxtapose
the impugned provision against the Constitution before finding it
unconstitutional and specify the reasons for such a finding. See
Robert Alai vs. The Hon. Attorney General & Another, HC
Petition No. 174 of 2016; [2017] eKLR.
[221] Furthermore once a Court is satisfied that a statute or provision

is unconstitutional, the next step is to make a declaration to that
effect. In Kenya, the position is that the impugned statute is no longer
deemed to exist and cannot be the subject of adjudication. See the
BBI Judgment. The effect of a declaration of unconstitutionality is
that the status quo ante is restored. See Senate & 2 Others vs.
Council of County Governors & 8 Others, SC Petition No. 25 of
2019; [2022] KESC 7 (KLR) (Senate Case).
[222]Looking at the present case, the Court of Appeal correctly

cautioned itself that there is a rebuttable presumption of the
constitutionality of a statute. However, after finding that the process
of enacting the Act flouted the provisions of the Constitution and the
PFM Act, the Court of Appeal found it unnecessary to consider
whether various provisions of the Act relating to tax legislations
violated the Constitution beyond the procedural aspects.
[223]The next thorny issue raised by the appellants was that the
Court of Appeal failed to consider the impact or consequence of
declaring the entire Act

unconstitutional on the existing financial framework. They further
submitted that the Court of Appeal failed to issue an appropriate
remedy and therefore, created uncertainty with far-reaching
implications on the financial and legislative stability in the country.
[224]Having declared the entire Act unconstitutional, and going by

our decision in the Senate Case, it means that the status quo ante
was reinstated, that is, the Finance Act, 2022. However, there still
remains the issue of the tax that was collected under the Act. It is
public knowledge that Finance Acts are always enacted in the context
of the annual budget cycle, and the Court of Appeal’s decision was
delivered post the financial year. In addition, the Finance Act, 2024
was not enacted. In the circumstances, was the declaration of
invalidity of the Act in its entirety proper in the circumstances?
[225]Where a declaration of invalidity poses an existential crisis,

courts around the world have tailored mechanisms for handling the
same. One among them is the remedy of suspension of invalidity. This
phrase made its inaugural appearance in 1985 when the Supreme
Court of Canada in Re Manitoba Language Rights, [1985] 1 SCR
721, 19 DLR held that most laws of the province of Manitoba were
unconstitutional and void ab initio for failure to publish them in both
French and English and only publishing them in English. However, to
avoid a vacuum, lawlessness and anarchy, the Court in furtherance of
the rule of law, suspended the judgment to allow Manitoba to comply
with the constitution. It further preserved any rights that accrued
under the laws existing at the time.
[226]Similarly, in 1992, the Supreme Court of Canada in the case of

Schachter vs. Canada, [1992] 2 S.C.R. 679, acknowledged the
supremacy of the Canadian Constitution as per Section 52(1) of the
Constitution Act, 1982. It went further to find that where a particular
law was declared unconstitutional, a Court then had to interrogate the
following 3 questions: a) what was the extent of inconsistency; b)
could the inconsistency be dealt with alone or were the other parts of
the legislation linked to it; and c) whether the declaration of invalidity

should be temporarily suspended. The Court also held that Section
52(1) of the Constitution grants Canadian courts “… flexibility in
determining what course of action to take” upon discovering that
a certain law was unconstitutional including, suspending declarations
of invalidity.
[227] Brian Bird in ‘The Judicial Notwithstanding Clause: Suspended

Declarations of Invalidity” (2019) 42 Manitoba Law Journal 23-49
considers the practice in Canada of suspending declarations of
invalidity under Section 33 of the Canadian Charter of Rights and
Freedoms, Part 1 of the Constitution Act, 1982, also called the
‘notwithstanding clause’. He notes that suspended declarations of
invalidity operate by suspending the validity of a declaration of
unconstitutionality as opposed to immediate implementation and gives
the legislature a chance to cure the malady. The justification for
suspended declarations of invalidity is where such declaration would
create lawlessness and chaos.
[228] In the Schachter Case, the Canadian Supreme Court set the
criteria to guide the courts in determining whether to issue suspended
declaration of invalidity as follows:
i. Whether a declaration of unconstitutionality poses a

potential danger to the public.
ii. Where a declaration of unconstitutionality threatens the

rule of law.
iii. Where the law is unconstitutional for failure to include all

categories of people it should reasonably include so that
the suspension allows legislature to determine whether to
extend or cancel the benefits in the ‘underinclusive’ law.
[229] In R vs. Albashir, 2021 SCC 48, the Supreme Court of Canada
again held that the purpose of suspension of a declaration of invalidity
is tested against the parameters of whether the declaration must
operate retroactively or prospectively. It cited the case of Canada
(Attorney General) vs. Bedford,

2013, SCC 72, [2013] 3 S.C.R. 1101, where it was held that the law
criminalizing living off the proceeds of sex work was unconstitutional.
The court in the Bedford Case however issued a suspended
declaration of deregulation of sex workers to protect them (sex
workers). The Court set out three guidelines to be applied when
interpreting constitutional remedies: constitutionalism, rule of law
and separation of powers.
[230] The principles for consideration before suspending a

declaration of constitutional invalidity were also laid out in the case of
Ontario (Attorney General) vs. G, 2020 SCC 38 by the majority of
the Court as follows:
“… As I will explain, when legislation violates the

Charter, courts have been guided by the following
fundamental remedial principles, grounded in the
Constitution, in determining the appropriate remedy,
applying them at every stage:
a. Safeguarding rights.
b. Compelling public interest in constitutionally
compliant litigation.
c. Public entitlement to the benefit of legislation.
d. Different arms of government play different

institutional roles.”
[231] Notably, even the Judges who dissented in the Ontario Case
(Supra), agreed that declarations of invalidity could be suspended
where there was a threat to the rule of law and where it was in the
public interest. The contest was the abuse of the remedy of
suspension. That Court further set forth the following guidelines when
crafting an appropriate remedy:
i. Determining the extent of invalidity.
ii. Determining what form the declaration should take.

iii. Legislature’s intention to have enacted the law in the
manner proposed by the Court.
[232]In Phumeza Mlungwana & 9 Others vs. The State & Anor;
[2018] ZACC 45, the Constitutional Court of South Africa stated that
an order declaring a legislation invalid may only be suspended if:
a) The declaration of invalidity would result in a legal

lacuna that would create uncertainty, administrative
confusion or potential hardship;
b) There are multiple ways in which the Legislature

could cure the unconstitutionality of the legislation;
and
c) The right in question will not be undermined by

suspending the declaration of invalidity.
[233] In Coetzee vs. Government of the Republic of South

Africa, Matiso and Others vs. Commanding Officer, Port
Elizabeth Prison and Others, (CCT19/94, CCT22/94) [1995] ZACC
7), Sachs, J. expressed himself as follows on the appropriateness of
granting a suspension order:
“The words ‘in the interests of justice and good

government’ are widely phrased and, in my view, it
would not be appropriate, particularly at this early
stage, to attempt a precise definition of their ambit.
They clearly indicate the existence of something
substantially more than the mere inconvenience which
will almost invariably accompany any declaration of
invalidity, but do not go so far as to require the threat
of total breakdown of government. Within these wide

parameters the Court will have to make an assessment
on a case-by-case basis as to whether more injustice
would flow from the legal vacuum created by rendering
the statute invalid with immediate effect than

would be the case if the measure were kept functional
pending rectification. No hard-and-fast rules can be
applied.”
[234] In Limpopo Province vs. Speaker of the Limpopo

Provincial Legislature and Others, (CCT 94/10); [2012] ZACC 3;
2012 (4) SA 58 (CC); 2012 (6) BCLR 583 (CC) (22 March 2012), the
Constitutional Court of South Africa, faced with a case for declaring a
statute unconstitutional, stated that in order to determine whether the
declaration should take immediate effect, the following had to be
considered:
“
1. If an immediate invalidation will result in a
legislative lacuna, where no remaining legislation
or regulations adequately deal with the issue, the
Court will suspend the invalidation. A legislative
lacuna may affect the interests of good
government.
2. A Court should readily allow parties to consult,

where they have indicated they intend to do so.
This consultation should be done in a manner that
does not cause undue administrative disruption in
the interim.
3. Prejudice- whether there will be any countervailing

considerations of hardship or harm that would
result from the continued operation of the
statutes.
4. Period of suspension: under this, the court should

consider the following:
a. The government’s conduct;
b. Whether there is any legislation in the

pipeline; and

c. The nature and severity of the continuing
infringement.”
See also Estate Agency Affairs Board vs Auction Alliance (Pty)

Ltd and Others, (CCT 94/13); [2014] ZACC 3; 2014 (3) SA 106 (CC);
2014 (4) BCLR 373 (CC).
[235] The concept of suspended declarations of invalidity is not

new in Kenya. See Marilyn Muthoni Kamuru &; 2 Others vs.
Attorney General &Another, HC Petition 566 of 2012; [2016] eKLR
and Centre for Rights Education and Awareness &2 Others v
Speaker of the National Assembly & 6 Others, HC Petition 371 of
2016; [2017] eKLR. The Supreme Court has also pronounced itself on
these issues see Mary Wambui Munene vs. Peter Gichuki
King'ara & 2 Others Petition No. 7 of 2014; [2014] eKLR and
Suleiman Said Shahbal vs. Independent Electoral and
Boundaries Commission & 3 Others, SC Petition No. 21 of 2014;
[2014] eKLR. In our context, the suspension of a declaration of
invalidity finds its anchor in Article 23 of the Constitution which
provides for the various reliefs available for violations for the Bill of
rights. The word ‘includes’ means that the list is not exhaustive.
Article 259(4)(b) of the Constitution stipulates that the word
“includes” means “includes, but is not limited to”.
[236] From the above analysis it is clear that a cautious approach

would apply, such that a suspended declaration should only be issued
where in the public interest, there exists a set of facts that are very
unique and demand for that suspended declaration, such as to avoid a
vacuum in the law, a threat to the rule of law, lawlessness, chaos or
anarchy. Certainly, it may apply to the questions posed hereinabove
as to resolving a possible crisis in the public law policy and practice.

[237] Applying the foregoing to the instant appeal, it is important
to note that a Finance Bill is required to implement the budget of the
nation. It sets out the revenue raising measures for the national
government. It follows, that under the Act revenue was raised in the
manner set out therein. It is also expected that the

State has collected taxes under the Act and expended the same. As
postulated by the 5th appellant, some of it was collected indirectly like
VAT.
[238]In view of the foregoing, we are of the view that 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. As
indicated elsewhere in this judgment, the range of reliefs provided for
under Article 23(3) is not exhaustive. The wording “In any
proceedings brought under Article 22, a court may appropriate
relief, including-…” is only indicative and refers to a range of reliefs
that may be ordered. To our minds, the preferred remedy would have
been to suspend the declaration of invalidity to allow Parliament take
remedial measures.
[239] A question may then arise as to whether a legislation or

provision automatically becomes invalid upon expiry of the period of
suspension. In our view, Article 23(3) of the Constitution gives a wide
latitude as to the nature of orders that can be issued for violations of
constitutional rights. In that connection, depending on the
circumstances, a court should extend the suspension of declaration of
invalidity at its discretion, considering all factors. The Constitutional
Court of South Africa extended the period of suspension of invalidity
in the case of Speaker of the National Assembly & Another vs.
Women’s Legal Centre trust & Others; [2024] ZACC 18. The Court
held:
“[17] This Court has the power to grant extension

orders in respect of orders made in terms of section
172 of the Constitution. According to section 172(1)
(b), courts are afforded a wide discretionary power to
grant a just and equitable remedy if it is in the
interests of justice to do so. In New Nation II, 11
dealing with a second application for an extension of
the period of suspension of the declaration of
invalidity, this Court held that—

‘[a] proper case justifying the need for an extension
must be made out because the effect of suspending
the operation of a declaration of invalidity is to
preserve law which has been found unconstitutional
and void, usually, as was the case here, to afford
Parliament opportunity to remedy the defect.’”
The Court also delineated the following factors for consideration:
a) The adequacy of the reasons provided for the failure

to comply with the extended suspension period;
b) Prejudice if the relief sought is or is not granted; and
c) The prospects of curing the constitutional defects

within the new deadline or, more generally, the
prospects of complying with the deadline.
Evidently, the court’s hands are not tied when dispensing justice.
[240] Within this context, we deem it necessary to outline the

following guidelines, which we draw from our own previous decisions
and persuasive decisions from other jurisdictions to assist courts, in
the event that a declaration of unconstitutionality of a statute or part
of thereof, is to be made:
i. There is a general but rebuttable presumption that a

statutory provision is consistent with the Constitution.
ii. The party that alleges inconsistency has the burden of

proving such a contention.
iii. In construing whether statutory provisions or part thereof

offend the Constitution, courts must subject the same to
an objective inquiry as to whether they conform with the

Constitution.

iv. The court must determine the object and purpose of the
impugned statute and consider the mischief which the
statute sought to cure and/or arrest.
v. The court must clearly set out what provision is

unconstitutional by juxtaposing the offending provision
against the Constitution.
vi. A court must clearly and with precision explain the

finding of unconstitutionality.
vii. The court 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.
[241] Once the declaration has been made, the next phase is what
consequential orders to issue. The following guidelines may be helpful
where the court is minded to issuing a suspension of declaration of
invalidity:
i. Suspension of invalidity is a remedy that ensures the

just and equitable relief, while ensuring that there is
no disruption to the regulatory aspects of the statutory
provision that is invalidated.
ii. The declaration of invalidity would result in a legal

lacuna that would create uncertainty, administrative
confusion or potential hardship.
iii. Whether more injustice would flow from the legal

vacuum created by rendering the statute invalid with

immediate effect than would be the case if the measure
were kept functional pending rectification.
iv. Whether there are multiple ways in which the

Legislature could cure the unconstitutionality of the
legislation.

v. The right in question will not be undermined by
suspending the declaration of invalidity.
vi. Whether the suspension would be in interests of justice

and good government, that is, whether the declaration
of invalidity causes more than an inconvenience but no
go so far as to require the threat of total breakdown of
government.
vii. A court must balance the interests of the successful

litigant in obtaining immediate constitutional relief and
the potential of disrupting the administration of
justice.
viii. Whether there will be any countervailing

considerations of hardship, prejudice or harm that
would result from the continued operation of the
statutes.
ix. Period of suspension: under this, the court should

consider the following:
a. The government’s conduct;

b. Whether there is any legislation in the pipeline; and
c. The nature and severity of the continuing infringement.
ix. What remedies should issue?
[242]It is common ground that the Court of Appeal, unlike the High Court,
declared the entire Act as unconstitutional on the basis that the legislative
process that led to its enactment was fundamentally flawed and in violation
of the Constitution. However, based on this Court’s findings in the eight (8)
issues herein above, we find conversely that the legislative process (public
participation and concurrence) was in accordance with the constitutional

edicts. 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 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.
[243] Consequently, the order that commends itself is an order setting

aside the Court of Appeal’s judgment save for the finding that the questions
relating to Sections 84 (Affordable Housing Levy) 88 and 89 (Statutory
Instruments Act) of the Act were moot. Further, with regard to the
impugned contents of the Act, we uphold the High Court judgment to the
extent that Sections 76 and 78 of the Act amending Section 7 of the Kenya
Roads Act, 1999; Section 87 of the Act amending Section 28 of the
Unclaimed Assets Act, 2011 are unconstitutional as they were neither
incidental nor directly connected to a money Bill.
[244]It is instructive to note that the 38 th -49th respondents through their

cross appeal raised the issue of refund of taxes paid by virtue of the
impugned Act, which the Court of Appeal declared unconstitutional. Taking
into account our findings in the preceding paragraphs, to the effect that the
Court of Appeal erred in declaring the entire Act unconstitutional, the
prayer for refund of taxes paid as sought, fails. Equally, the cross appeal by
the 38th – 49th lacks merit and is dimissed.
F. CONCLUSION & SUMMARY OF FINDINGS
[245] The budget process is the most relevant and important

economic event, not only to the government but more so to the people
in whom the sovereign power lies. It is for this reason that all the
questions raised and determined in this appeal revolve around the
people. The focus on the people in the budget making process must be
balanced against the government’s constitutional mandate to facilitate
and realize a strong and acceptable fiscal outlook for the economy. To
achieve the balance the budget planning and preparation system and
strategies must be in strict conformity with the Constitution and the
law. The process does not end with the budget making but extends

beyond to ensuring both expenditure control and transparency in the
government; where resources go to specific areas targeted in the
budget for the people and the people see the outcome and are
satisfied. That way there will be no mistrust in government budgeting.

[246]Consequently, the following is a summary of our findings:
a) This Court has jurisdiction to determine the SC

Petition Nos. E032 & E034 of 2024 under Article
163(4)(a) of the Constitution.
b) The question relating to Section 84 (Affordable
Housing Levy) of the Act is moot.
c) Sections 76 and 78 of the Act amending Section 7 of
the Kenya Roads Act, 1999; Section 87 of the Act
amending Section 28 of the Unclaimed Assets Act,
2011 are unconstitutional as they were neither
incidental to nor directly connected to a money Bill.
d) The prayer for refund of taxes paid, fails.
e) A Finance Bill is a money Bill contemplated under
Article 114 of the Constitution.
f) The Speaker of the National Assembly and the Speaker
of Senate concurred that the Finance Bill, 2023 does
not concern County Government.
g) Two new provisions being Sections 23 and 79 were
minor/technical amendments. However, the other 15
new provisions being Sections 18, 21, 32, 38, 44, 69,
80, 81, 82, 83, 85, 86, 100, 101, and 102 were
substantive amendments. In addition, amendments to
Sections 24, 26, 47 and 72, were also substantive
amendments.
h) Where new substantive amendments are effected
pursuant to public participation, Parliament is not
required to undertake fresh public participation.
i) Bearing in mind the time-sensitive nature of a Finance

Bill, it is untenable to require or subject amendments
intended to give effect to proposals and suggestions
from a public

participation exercise to another fresh round of public
participation.
j) Parliament exercises administrative powers in some of
its functions including investigations,
recommendations, and findings by its respective
committees or approval of appointments to public
office. However, the exercise of legislative power does
not amount to administrative action, and Article 47(2)
of the Constitution cannot be the basis for an
obligation on Parliament to provide reasons for
accepting or rejecting views gathered during public
participation in the law-making process.
k) While there is no express obligation on Parliament to
provide reasons for accepting and/or rejecting
proposals/views made during a public participation
exercise, as a matter of good practice, it must
nonetheless put in place reasonable measures to
ensure it considers and treats the proposals, views,
suggestions, and comments received during such an
exercise.
l) The National Assembly’s Departmental Committee on
Finance and National Planning’s ‘Report on the
Consideration of the Finance Bill (National Assembly
Bill No. 14 of 2023)’ met the threshold of a reasonable
measure for considering proposals, views and
suggestions from the public, with respect to the public
participation exercise conducted on the Finance Bill,
2023.
m) In line with Article 221 (6) of the Constitution
estimates of revenue are not a component of the
Appropriation Act. The preparation and tabling of the
estimates of revenue and expenditure precede the
preparation and tabling of the Appropriation Bill.

n) The estimates of revenue and expenditure for the FY
2023/2024 were tabled and considered before the
National Assembly as required by law.
o) Generally, courts should refrain from intervening in
policy matters. However, the High Court under Article
165 of the Constitution retains residual jurisdiction to
determine the constitutionality of any law, policy
matter or decision within the meaning of Article 165(3)
(b) & (d) of the Constitution.
p) In determining whether to declare a statute or part
thereof as unconstitutional, a court should take into
account the following factors:
i. There is a general but rebuttable
presumption that a statutory provision is
consistent with the Constitution.
ii. The party that alleges inconsistency has the
burden of proving such a contention.
iii. In construing whether statutory provisions or
part thereof offend the Constitution, courts
must subject the same to an objective inquiry
as to whether they conform with the
Constitution.
iv. The court must determine the object and
purpose of the impugned statute and
consider the mischief which the statute
sought to cure and/or arrest.
v. The court must clearly set out what provision
is unconstitutional by juxtaposing the
offending provision against the Constitution.
vi. A court must clearly and with precision
explain the finding of unconstitutionality.
vii. The court 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.
q) The criteria that ought to guide a court in determining
whether to issue a suspension of declaration of
invalidity is as follows:
i. Suspension of invalidity is a remedy that is in
the nature of a just and equitable relief,
while ensuring that there is no disruption to
the regulatory aspects of the statutory
provision that is invalidated.
ii. The declaration of invalidity would result in a
legal lacuna that would create uncertainty,
administrative confusion or potential
hardship.
iii. Whether more injustice would flow from the
legal vacuum created by rendering the
statute invalid with immediate effect than
would be the case if the measure were kept
functional pending rectification.
iv. Whether there are multiple ways in which the
Parliament could cure the unconstitutionality
of the legislation.
v. The right in question will not be undermined
by suspending the declaration of invalidity.
vi. Whether the suspension would be in the
interest of justice and good government, that
is, whether the declaration of invalidity
causes more than an

inconvenience but not go so far as to require
the threat of total breakdown of government.
vii. A court must balance the interests of the
successful litigant in obtaining immediate
constitutional relief and the potential of
disrupting the administration of justice.
viii. Whether there will be any countervailing
considerations of hardship, prejudice or
harm that would result from the continued
operation of the statute.
ix. In determining the period of suspension, the
court should consider the following matters:
(a) The government’s previous conduct;
(b) Whether there is any
related legislation in
the pipeline; and
(c) The nature and severity of
the continuing
infringement.
[247] Additionally, we deem it fit to issue the following

recommendations:
a) Parliament ought to put in place a legislative

framework to regulate the process of public
participation as envisaged under the Constitution.
b) Parliament ought to put in place measures to
ensure that all versions of a Bill, at every stage of
the law-making process, are accessible to the public
for their information and scrutiny.
c) As a matter of good practice, Parliament should put
in place reasonable measures for the consideration

of proposals, views, suggestions, and comments
received during a public participation exercise.

F. COSTS
[248]Bearing in mind the circumstances of the matter at hand and

the principles on the award of costs enunciated in Jasbir Singh Rai
& 3 Others v. Tarlochan Singh Rai Estate of & 4 Others; SC
Petition 4 of 2012; [2013] eKLR, we find that due to the public
interest nature of this matter each party should bear their own costs.
G. ORDERS
[249]In the premise, we issue the following orders:
1. The preliminary objection on this Court’s jurisdiction is

overruled.
2. The consolidated appeal partially succeeds to
the following extent:
a) We hereby set aside the Court of Appeal’s finding
declaring the entire Finance Act, 2023
unconstitutional.
b) We uphold the following findings by the Court of
Appeal:
i. That the question relating to Section 84
(Affordable Housing Levy) introduced by the
Finance Act, 2023 before the Court of Appeal
was moot.
ii. That Sections 76 and 78 of the Act amending
Section 7 of the Kenya Roads Act, 1999;
Section 87 of the Act amending Section 28 of
the Unclaimed Financial Assets Act, 2011 are
unconstitutional as they were neither
incidental to nor directly connected to a
money Bill.
3. The 15th -19th & 22nd and 38th - 49th respondents’
cross appeals are hereby dismissed.
4. Each party will bear their costs of the consolidated
appeal and cross appeals.
5. We hereby direct that the security for costs
deposited in the consolidated appeal be refunded to
the depositor(s).
It is so ordered.
DATED and DELIVERED at NAIROBI this 29th day of October, 2024.
………………………………………………………….
M. K. KOOME
CHIEF JUSTICE &
PRESIDENT OF THE
SUPREME COURT
………………………………………….. ………………………………………………
P.M. MWILU M.K. IBRAHIM
DEPUTY CHIEF JUSTICE & JUSTICE OF THE SUPREME
COURT VICE PRESIDENT OF THE
SUPREME COURT
…………………………………………. …………………………………………….
S. C. WANJALA NJOKI NDUNGU
JUSTICE OF THE SUPREME COURT JUSTICE OF THE SUPREME
COURT
…………………………………………. …………………………………………….
I. LENAOLA W. OUKO
JUSTICE OF THE SUPREME COURT JUSTICE OF THE SUPREME COURT
I certify that this is a true

copy of the original

REGISTRAR
SUPREME COURT OF KENYA

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REPUBLIC OF KENYA

IN THE SUPREME COURT OF KENYA

PETITION NO. E031 OF 2024 AS CONSOLIDATED WITH

THE ATTORNEY GENERAL....................................2ND APPELLANT

KENYA REVENUE AUTHORITY.............................5TH APPELLANT

Petition Nos. E031, E032 & E033 of 2024 Page 2 of 137

(Being appeals against the Judgment of the Court of Appeal (M’Inoti,

Petition Nos. E031, E032 & E033 of 2024 Page 4 of 137

Petition Nos. E031, E032 & E033 of 2024 Page 5 of 137

Petition Nos. E031, E032 & E033 of 2024 Page 6 of 137

JUDGMENT OF THE COURT

(a) At the High Court

Petition Nos. E031, E032 & E033 of 2024 Page 7 of 137

Petition Nos. E031, E032 & E033 of 2024 Page 8 of 137

Petition Nos. E031, E032 & E033 of 2024 Page 9 of 137

Petition Nos. E031, E032 & E033 of 2024 Page 10 of 137

[5] In addition to the foregoing, it was posited that some of the

Petition Nos. E031, E032 & E033 of 2024 Page 11 of 137

Petition Nos. E031, E032 & E033 of 2024 Page 12 of 137

[7] In response, the appellants herein, who were some of the

Petition Nos. E031, E032 & E033 of 2024 Page 13 of 137

Petition Nos. E031, E032 & E033 of 2024 Page 14 of 137

[10]On the first issue relating to procedural requirements, the court

[11] On the second sub-issue, while appreciating that what it

Petition Nos. E031, E032 & E033 of 2024 Page 15 of 137

Petition Nos. E031, E032 & E033 of 2024 Page 16 of 137

Petition Nos. E031, E032 & E033 of 2024 Page 17 of 137

[13] On the constitutionality of the amendments to the tax laws,

Petition Nos. E031, E032 & E033 of 2024 Page 18 of 137

i. Sections 76 and 78 of the Finance Act, 2023

ii. A declaratory order be and is hereby issued that

iii. An order of prohibition is hereby issued prohibiting

Petition Nos. E031, E032 & E033 of 2024 Page 20 of 137

(b) At the Court of Appeal

[15] The High Court’s decision precipitated the filing of 7 appeals

[16] Cumulatively, the consolidated appeal challenged the High

Petition Nos. E031, E032 & E033 of 2024 Page 21 of 137

Petition Nos. E031, E032 & E033 of 2024 Page 22 of 137

[18] The Court of Appeal (M’inoti, Murgor & Mativo, JJ.A.) by a

Petition Nos. E031, E032 & E033 of 2024 Page 23 of 137

Petition Nos. E031, E032 & E033 of 2024 Page 24 of 137

[21] On whether the Senate ought to have been involved in the

[22] On public participation, the appellate court while relying on

Petition Nos. E031, E032 & E033 of 2024 Page 26 of 137

[23] On whether estimates of revenue and expenditure were included

[24] On whether the High Court abdicated its jurisdiction by holding

Petition Nos. E031, E032 & E033 of 2024 Page 27 of 137

Petition Nos. E031, E032 & E033 of 2024 Page 28 of 137

Petition Nos. E031, E032 & E033 of 2024 Page 30 of 137

(c) At the Supreme Court

[30] As indicated in the opening paragraph of this judgment, three

[31] The consolidated appeal challenged the impugned judgment

Petition Nos. E031, E032 & E033 of 2024 Page 31 of 137

Petition Nos. E031, E032 & E033 of 2024 Page 32 of 137

[32]Cumulatively, the consolidated appeal seeks the following orders:

i. The consolidated appeal be allowed.

ii. The impugned decision of the Court of Appeal be set

iii. Costs of the consolidated appeal.

Petition Nos. E031, E032 & E033 of 2024 Page 34 of 137

[34]The cross appeals seek the following reliefs: