Activist Okiya Omtatah has filed a petition at the High Court challenging the legality of Finance Act 2022 on new taxes imposed on mobile phones and sim cards signed into law by President Uhuru Kenyatta in June this year.
In a certificate of urgency, Omtatah wants the court to issue orders directing the Kenya Revenue Authority (KRA), Communication Authority of Kenya (CAK), Safaricom Limited, Airtel Networks Kenya Limited and Telecom Limited to suspend further implementation of the imposition of excise duties for mobile phones and sim cards after the Finance Act 2022 took effect on July 1, 2022.
"The court be pleased to issue an interim order suspending the imposition of excise duty at the rate of 10% on imported cellular mobile phones and on imported SIM cards at Ksh50 per SIM card under the Finance Act 2022 pending the hearing and determination of the petition," the activist stated.
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Omtatah wants court to suspend government's move on excise duties
Omtatah who is also a Senate candidate for Busia county in the forthcoming elections, wants the court to suspend the government's move on the impugned excise duties on phones and Sim cards terming the decision as illegal and unconstitutional.
"This matter is extremely urgent given that on June 21, 2022, H. E. President Uhuru Muigai Kenyatta assented to the Finance Bill, 2022, enacting the Finance Act, 2022 which, for purposes of these proceedings, commenced on July 1, 2022 and has unlawfully and unconstitutionally sneaked into law and imposed on innocent Kenyans punitive taxes which Parliament irregularly inserted into the Finance Bill, 2022," Omtatah argued.
The activist further states that the imposition of the impugned new excise duty on mobile phones and sim cards has no basis in law.
In his court papers, Omtatah says he is aggrieved that the impugned excise duties were imposed without public participation as the traders and consumers of imported SIM cards and imported cellular mobile phones were condemned unheard.
"The impugned excise duties are unconstitutional and unlawful, and it is therefore invalid, null and void because it was imposed by Parliament without the concurrence of the Cabinet Secretary for Finance and without public participation, "Omtatah says.
The activist contends that if the impugned duties are not stay or suspended the people of Kenya will suffer great loss.
"The application faults the impugned excise duty as being dangerous, catastrophic, irregular, unreasonable, illegitimate, unlawful, and, therefore, unconstitutional, null and void. The petitioner is inviting the court to intervene, suspend and then quash the impugned taxes," the court papers stated.
He posits that the National Assembly who he has sued together with Attorney General Kihara Kariuki must perform its functions in accordance with the Constitution as provided for under Article 93(2) of the Constitution.
"The court is enjoined to stand up to this impunity, lawlessness and cascading
corruption in the affairs of the National Assembly by suspending and later quashing the impugned duties, " Omtatah states.
According to Omtatah the Finance Bill, 2022 (National Assembly Bills No. 22 of 2022) (the Bill), was published in the Kenya Gazette Supplement No. 67 on April 8, 2022 and read for the first Time in April 12, 2022.
It was then committed to the Departmental Committee on Finance and National Planning for consideration with public participation and reporting to the House pursuant to National Assembly Standing Order 127.
"None of the fifty-three (53) clauses of the Finance Bill, 2022 sought to impose
excise duty at the rate of 10% on imported cellular mobile phones and at Ksh 50 per SIM card on imported SIM cards, " he stated.
"In particular, clauses 31, 32, 33, 34, and 35 of the Bill, which made proposals to amend the Excise Duty Act, 2015 did not propose to impose the impugned duties."
Omtatah added that the Press adverts published on Wednesday April 20, 2022 by the Clerk of the National Assembly calling for public participation during the consideration of the Finance Bill, 2022 by the House, did not state that the Finance Bill, 2022 proposed amendments to impose excise duties at any rate on imported cellular mobile phones and on imported SIM cards.
The Petitioner however says he is aggrieved that, contrary to the above, the Finance Act, No. 22 of 2022, which the President assented to on June 21,2022 and was published in the Kenya Gazette on June 23, 2022, imposes excise duty at the rate of 10% on imported cellular mobile phones and at Sh 50 per SIM card on imported SIM cards.
"The petitioner is aggrieved further that the impugned excise duties were imposed when the Finance Bill was amended on the floor of the National Assembly at the Committee of the Whole House when the Bill was read for a third and final time,"reads the court papers
"It cannot be disputed that the imposition of impugned excise duties were sneaked into the Finance Bill, 2022 after the Bill had been subjected to public participation by the National Assembly. Further and in particular, besides the fact that the impugned amendments are not mentioned in both the Bill and in its Memorandum of Objects and Reasons, and in the advert which the Clerk of the National Assembly published in the national Press calling for public participation on the Finance Bill, 2022, the proposed amendments to the Excise Duty Act, 2015, did not include the imposition of excise duty at any rate on imported SIM cards and on imported cellular mobile phones. "
The Activist avers that he reasonably suspects that the decision to sneak into the Finance Bill, 2022 the controversial imposition of the impugned excise duties, was deliberately made to hide the tax from being noticed at all by members of the public and stakeholders, who were supposed to participate in its consideration and approval.
