Kenya: Supreme Court Declines Mistimed Bid to Intervene in Finance Act Petition

Nairobi — The Supreme Court has declined an invitation to review conservatory orders by the Court of Appeal lifting the suspension on implementation of the Finance Act 2023 pending determination of a suit arising from the High Court.

While dismissing a notice of motion filed by Senator Okiya Omtatah and co-activists, the country’s apex court said the application did not meet the threshold of the Supreme Court’s appellate jurisdiction under Article 164(4) of the Constitution.

The court’s full bench led by Chief Justice Martha Koome noted that, in exercising its discretion on matters pending before it, the Court of Appeal under Rule 5(2)(b) the appeal court does not determine the appeal placed before it.

“It is well settled that the purpose of Rule 5(2)(b) is to preserve the substratum of an appeal or intended appeal before the Court of Appeal,” the bench asserted in a ruling delivered Friday.

“Equally, the Court of Appeal in issuing orders under Rule 5(2)(b) exercises original and discretionary jurisdiction,” the judges held.

The court noted that the decision of the court of appeal did not constitute final orders of the court.

“It (CoA) does not dispose of the appeal or intended appeal before it. In other words, it does not make definitive findings on the substantive merits of the appeal or intended appeal.”

The Supreme Court further noted that it was not convinced the Court of Appeal’s provisional orders had occasioned such a grave injustice to warrant its intervention.


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