In a landmark decision in Civil_Appeal No_E003_of_2023 the Court of Appeal of Kenya declared the Finance Act 2003 unconstitutional. This comes hot on the heels of the rejection of the Finance Bill, 2004 in the wake of public demonstrations against the punitive taxation measures in the Bill.
Key highlights of the decision are:
1. A statute enacted contrary to constitutionally mandated processes is invalid;
2. The constitutional principle of public participation is not a mere formality or a public relations exercise: it must be meaningful. Changes to a Bill must be subjected to public participation;
3. Parliament is duty-bound to give reasons why particular proposals were rejected;
4. The Executive’s discretion in policy matters is subject to the test of constitutionality and legality, absent which the Judiciary will interfere in policy matters.
