Cabinet Secretary for the National Treasury and Planning & 4 others v Okoiti & 52 others
The bottom line
#Supreme Court keeps Finance Act 2023 in force pending full appeal.
What this practically means
#The Supreme Court has allowed the National Assembly to temporarily keep the Finance Act 2023 in effect. The Court of Appeal had declared the entire Act unconstitutional, but the Supreme Court paused that decision while it hears the main appeal. The Court found the appeal raises serious legal questions about public participation and Parliament's powers. It also said striking down the Act would disrupt government revenue and operations, and public interest favours keeping the law in place until the final decision.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the consolidated appeal is arguable and not frivolous
- 2.Whether the appeal would be rendered nugatory unless stay or conservatory orders are granted
- 3.Whether public interest favours the grant of stay or conservatory orders
Key legal issues
#Whether the appeal is arguable
The appeal is arguable because issues such as the place and extent of public participation in the legislative process, whether Parliament can amend bills after public participation, and the parameters of a declaration of unconstitutionality warrant the court's consideration.
The court found that even one arguable point suffices. It identified several issues from the applicants' grounds, including the misapprehension of the enactment procedure for a Money Bill under Article 114, the threshold of public participation, and whether the Court of Appeal conflated the purpose of an Appropriation Act and a Finance Act. These issues merit consideration without definitive findings at the interlocutory stage.
Whether the appeal would be rendered nugatory without stay orders
The appeal would be rendered nugatory because the declaration of the entire Finance Act, 2023 as unconstitutional has far-reaching implications on revenue collection and government operations, and the consequences may not be reversible if the appeal succeeds.
The court distinguished the earlier refusal of stay by the Court of Appeal, noting that the High Court had not declared the entire Act unconstitutional. The current circumstances are different. The uncertainty regarding revenue measures, difficulty in government operations, and the irreversibility of consequences if the appeal succeeds persuaded the court that the nugatory aspect was satisfied.
Whether public interest favours the grant of stay orders
Public interest tilts in favour of granting conservatory and stay orders to preserve the substratum of the appeal and maintain stability in the budget and appropriation process.
The court balanced the loss and uncertainty to the applicants against the loss to the respondents and the public. It found that public interest favoured granting the orders to maintain stability in the budget and appropriation process pending the appeal's determination. The court also directed that the appeal be heard expeditiously.
Legal principles established
#- The three elements for granting stay or conservatory orders must be established conjunctively, not disjunctively.
- A lower court's refusal to grant stay does not bar the Supreme Court from issuing such orders on a case-by-case basis.
- An appeal is arguable if it raises at least one serious legal issue warranting consideration.
- The nugatory aspect is satisfied if the consequences of the lower court's decision are far-reaching and may not be reversible if the appeal succeeds.
- Public interest favours granting stay to preserve the substratum of the appeal and maintain stability in budget and appropriation processes.
Court orders
#- 1.A conservatory order is hereby issued suspending and staying the declarations in orders iii, iv, vi, vii & ix(i) issued in the Court of Appeal judgment dated July 31, 2024 in Civil Appeals Nos E003, E016, E021, E049, E064 & E080 of 2024 (Consolidated) pending the hearing and determination of the consolidated appeal before this court.
- 2.The consolidated appeal be set down for mention before the Deputy Registrar of the court for purposes of ensuring compliance with earlier directions on filings.
- 3.The consolidated appeals shall be set for hearing virtually on 10th and September 11, 2024 at 9 am each day.
- 4.Each party shall bear its costs of the motions.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal
- Civil Appeals Nos E003, E016, E021, E049, E064 & E080 of 2024 (Consolidated)
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
- Consolidated with
- SC Petition No E031 of 2024, SC Petition No E032 of 2024, SC Petition No E033 of 2024
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
the element of an arguable appeal and the nugatory aspect should be established conjunctively and not disjunctively in an application for stay and conservatory orders
the fact that the superior courts below declined to issue stay of execution or conservatory orders by itself does not bar this court from issuing interlocutory orders on a case-by-case basis
balancing the loss and uncertainty which would be occasioned to the applicants as against the loss by the respondents and public, we find that public interest tilts in favour of granting conservatory and stay orders to preserve the substratum of the consolidated appeal and maintain stability in the budget and appropriation process pending the determination of this appeal
A conservatory order is hereby issued suspending and staying the declarations in orders iii, iv, vi, vii & ix(i) issued in the Court of Appeal judgment dated July 31, 2024 in Civil Appeals Nos E003, E016, E021, E049, E064 & E080 of 2024 (Consolidated) pending the hearing and determination of the consolidated appeal before this court.
Each party shall bear its costs of the motions.
Key timeline
#Practical implications
#Conjunctive test for stay orders confirmed
The Supreme Court clarified that the three elements for granting stay or conservatory orders—arguable appeal, nugatory aspect, and public interest—must all be satisfied together. Public interest alone cannot override the other two. When applying for stay, ensure you demonstrate each element conjunctively. Also, a lower court's refusal does not bar the Supreme Court from granting stay if circumstances change.
Finance Act 2023 remains in effect for now
Businesses can continue to rely on the Finance Act 2023 as the Supreme Court has temporarily suspended the Court of Appeal's ruling that struck it down. This means tax provisions and other measures under the Act are still enforceable. However, this is temporary pending the final appeal hearing scheduled for September 2024. Monitor the outcome closely as it could affect your tax obligations and financial planning.
Tax laws stay unchanged pending appeal
The Supreme Court has kept the Finance Act 2023 in force while it hears the full appeal. This means the tax changes introduced by the Act, such as new levies or rates, continue to apply for now. If you were expecting a refund or change based on the Court of Appeal decision, you will have to wait until the Supreme Court makes its final ruling. No immediate changes to your tax obligations.
Frequently asked questions
#Is the Finance Act 2023 still valid in Kenya?+
Yes, for now. The Supreme Court suspended the Court of Appeal's decision that declared the entire Act unconstitutional. The Act remains in effect until the Supreme Court hears and decides the full appeal, scheduled for September 2024.
What did the Supreme Court decide in the Finance Act 2023 case?+
The Supreme Court granted a temporary order keeping the Finance Act 2023 in force while it hears the main appeal. It found the appeal raises serious legal issues and that striking down the Act would disrupt government revenue and operations. The final decision is pending.
When will the Supreme Court rule on the Finance Act 2023 appeal?+
The Supreme Court has set the appeal hearing for September 10-11, 2024. A ruling will follow after the hearing. Until then, the Finance Act 2023 remains in effect due to the conservatory orders granted.
Does the Supreme Court's decision mean the Finance Act 2023 is constitutional?+
No. The Supreme Court has not ruled on the constitutionality of the Act. It only temporarily paused the Court of Appeal's declaration of unconstitutionality to allow the full appeal to be heard. The final decision on constitutionality will come after the appeal.
Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Cytonn Investment Partners Four LLP & 6 others v Official Receiver & 2 others[2026] KESC 51 (KLR)3 Jul 2026
- Kenya Railways Corporation v Bilal & 14 others[2026] KESC 14 (KLR)30 Jan 2026
Cite this brief
#Cite this brief
Caselaw, "Cabinet Secretary for the National Treasury and Planning & 4 others v Okoiti & 52 others", Case Analysis (2024). Petition E031, E032 & E033 of 2024 (Consolidated). Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2024/47/eng@2024-08-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.