Court of appeal suspends decision by High Court that nullified 23 laws
By Patrick Vidija
| November 19th 2021
The Court of Appeal has suspended a decision by the High Court that nullified 23 laws among them, the one that operationalised Huduma Namba, slapped higher taxes on betting firms and restricted what Kenyans could say online.
A three-judge bench issued a conservatory order staying the execution of the judgment until the case is heard and determined.
The Appeals Court said another conservatory order staying the execution of the judgment and orders of the High Court between Katiba Institute and the Attorney General and others is also granted pending filing, hearing and determination of the intended appeal.
“In view of the nature of the litigation herein and the urgency involved, we direct that the matter be mentioned before the President of the Court within fourteen (14) days of the delivery of this ruling, for the President of the Court to give directions on the expeditious disposal of the intended appeals,” read part of a ruling.
The judges said they had analysed all the submissions by both parties and found the basis for granting the relief sought by the AG in both applications as the submissions have met the threshold for granting the relief
In October this year, the High Court struck out the 23 laws that had been passed by the National Assembly, most of them in 2018.
This is after the Senate moved to court to challenge the laws, saying MPs had not sought their input.
Judges Jairus Ngaah, Anthony Ndungu and Teresia Matheka declared that the National Assembly had no monopoly to unilaterally pass laws without seeking the agreement of their counterparts in the Senate.
“It is mandatory for National Assembly Speaker to seek the concurrence of the Senate Speaker on Bills concerning counties. We find that the contested laws were illegally enacted without the concurrence of the two Houses and declare them unconstitutional, null and void,” ruled the judges.
The laws were suspended for nine months to give MPs time to consult the Senate.
Key among the laws was the Finance Act 2018, whose proposals were among the reasons several betting companies exited the market. The legislation required them to pay 20 per cent on winnings in addition to corporate taxes.
The nullification also left the National Integrated Identity Management System – better known as Huduma Namba into greater doubt. The initiative was introduced under the Miscellaneous Amendment Act 2018 but was struck out.
Also invalidated was the Computer Misuse and Cyber Crime Act 2018 which sought to protect online users from harassment, hacking and terrorism.
There were fears it would be misused to restrict what bloggers and media houses could post online.
Attorney General Paul Kihara however moved to the Court of Appeal to challenge the ruling.
The challenge saw the court breath some lifeline into the Huduma Namba initiative which had already been rolled out.
After a spirited plea by National Assembly lawyers Paul Muite and Issa Mansur, Court of Appeal judges Agnes Murgor, Jessie Lesiit, and Pauline Nyamweya ordered that the laws should remain effective until November 5.
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