The Court of Appeal has summoned Energy and Petroleum Regulatory Authority (EPRA) Director General Daniel Kiptoo for implementing the fuel levy despite the existence of orders suspending the tax. This decision comes after EPRA had already moved to effect new prices before the orders were lifted, leading to allegations of contempt of court.
The High Court had originally scheduled the hearing of the Finance Act for September 13 and 14, but the Appellate Court's intervention has changed the trajectory of the case. During the mention, a three-judge bench comprising David Majanja, Christine Meoli, and Lawrence Mugambi rejected Busia Senator Okiya Omtatah's application to cross-examine National Assembly Speaker Moses Wetang'ula and Senate counterpart Amason Kingi regarding their affidavits claiming concurrence between the two houses before the law was passed.
In his petition, Omtatah questioned the constitutionality of the contested law, arguing that the National Assembly passed the legislation without Senate input. Wetang'ula and Kingi maintained that there was concurrence, while Omtatah contested their claims, alleging they lied. The application to cross-examine the speakers was opposed by their lawyers, who argued that the affidavits were factual.
The Law Society of Kenya (LSK), one of the petitioners in the case, has argued that the implementation of the Act is unconstitutional despite the Court of Appeal ruling. LSK President Eric Theuri requested the court to prevent government agencies, particularly the Kenya Revenue Authority (KRA), from collecting taxes proposed by the legislation. He emphasized that Kenyans are already burdened with high taxation and contended that one of the provisions, the Housing Fund, is discriminatory and disadvantageous to those in formal employment.
According to the LSK, the housing levy obligates only those in formal employment to contribute to the scheme, without a corresponding duty for individuals in the informal sector. This discrepancy is seen as unconstitutional and contrary to Article 27 of the Constitution. The petition argues that the largest population of the scheme comes from the informal subsector.
As the legal battle around the Finance Act continues, taxpayers and stakeholders eagerly await the outcome. The summoning of EPRA's Director General by the Court of Appeal is a significant development in the case and underscores the importance of adhering to court orders. It remains to be seen how this case will impact the implementation of the Act and its implications for taxation in Kenya.
