Background
We had previously highlighted that following the enactment of Kenya’s Finance Act 2023, several petitions were filed at the High Court challenging various aspects of the Finance Act 2023. The High Court made a decision on the consolidated petitions and declared several parts of the Finance Act 2023 unconstitutional. The High Court’s decision triggered the filing of several appeals in the Court of Appeal (the CoA). The CoA has, in turn, made a landmark decision on the consolidated appeals declaring the entire Finance Act 2023 unconstitutional for the following reasons:
(i) Lack of public participation: the CoA determined that Parliament by-passed public participation by introducing in the Finance Bill 2023, 18 new provisions which had not been subject to public participation. Additionally, the CoA determined that Parliament ought to give reasons for rejecting or adopting proposals submitted during the public participation to ensure transparency and accountability. Accordingly, the CoA declared that the entire process leading to the enactment of the Finance Act 2023 was flawed due to a lack of transparency and accountability on account of Parliament’s failure to give reasons for rejecting or adopting proposals;
(ii) Fundamental violations of the budget-making process: the CoA determined that the enactment of the Finance Act 2023 fundamentally violated the budget-making process laid out in the Constitution and the Public Finance Management Act on account of Parliament’s failure to include revenue estimates presented to and approved by it in the Appropriations Act 2023 which formed the basis of the enactment of the Finance Act 2023.
Implications of the CoA’s Determination
Following the CoA’s determination, it follows that all amendments introduced to Kenya’s tax regime by the Finance Act 2023 have been negated. Consequently, taxpayers in Kenya should expect the following key changes to the tax regime:
(i) Pay as You Earn (PAYE): the 32.5% rate on income between KES 500,000 and KES 800,000 and the 35% rate on income above KES. 800,000 introduced by the Finance Act 2023 will henceforth be payable as follows:
Annual Income | Rate of Taxation in Each Shilling |
On the first KES 288,000 | 10% |
On the next KES 100,000 | 25% |
On all income above KES 388,000 | 30% |
(iii) Value Added Tax (VAT) on petroleum products, which was increased to 16% by the Finance Act 2023, reverts to the previous rate of 8%;
(iii) the VAT on Liquefied Petroleum Gas, which was zero-rated under the Finance Act 2023, reverts to the previous rate of 8%;
(iv) other zero-rated supplies, including the supply of solar and lithium-ion batteries, electric bicycles and locally assembled and manufactured mobile phones, revert to their previous rates of taxation;
(v) alcoholic beverage manufacturers and bookmakers in Kenya’s betting and gambling industry will no longer be required to remit excise duty within twenty-four hours and shall henceforth revert to remitting monthly excise duty returns not later than the twentieth day of the succeeding month;
(vi) the upper limit for turnover tax, which was reduced to KES 25,000,000 by the Finance Act 2023, reverts to the previous limit of KES. 50,000,000. Additionally, the tax rate, which was increased to 3% reverts to 1%;
(vii) the following new taxes and procedures introduced under the Finance Act 2023 are no longer applicable:
a) tax on repatriated income for non-residents carrying on business in Kenya through a permanent establishment at the rate of 15% of the repatriated income;
b) the digital asset tax, payable by a person on income derived from the transfer or exchange of digital assets at the rate of 3% of such income;
c) electronic tax invoices (e-TIMS) required of any person carrying on business in Kenya;
d) withholding tax on sales, promotion, marketing and advertising services, as well as digital content monetization;
e) indirect Capital Gains Tax on alienation of shares or comparable interests, including interests in a partnership or trust deriving more than twenty per cent of their value directly or indirectly from immovable property situated in Kenya; and
f) excise duty on items such as imported fish, powdered juice, imported sugar, imported cement, imported cellular phones and imported furniture.
(vii) finally, the Supplementary Budget 2024/2025 based on the provisions of the now unconstitutional Finance Act 2023, may also be subject to significant changes.
Other Significant Determinations by the CoA
In addition to declaring the Finance Act 2023 unconstitutional, the CoA made significant pronouncements on the matters described below:
(i) The content of Money Bills: Money Bills, as defined by the Constitution, should only contain provisions dealing with taxes, the imposition of charges on a public fund or the variation or repeal of any of those charges, the appropriation, receipt, custody, investment or issue of public money, the raising or guaranteeing of any loan or its repayment or matters incidental to any of those matters;
(ii) Tax refunds: taxes collected under the now negated Finance Act 2023 will not be refunded immediately as the CoA determined that laws are presumed constitutional upon the moment they have been finally determined by the apex court, the Supreme Court;
(iii) Status of the Housing Levy: the Housing Levy remains in force and deductible as its deduction is no longer based on the Finance Act 2023 but on the Affordable Housing Act 2023.
Application for Stay of Execution
It is worth noting that the Government has lodged an application at the Supreme Court seeking a stay of execution against the CoA’s judgement pending the hearing and determination of its appeal against the CoA’s judgement. While the Supreme Court declined to grant the stay, the application is set to be heard by the Supreme Court later this month. The Supreme Court’s determination on whether or not to grant a stay of execution will provide conclusive guidance on whether and when the above-mentioned changes to the tax regime will take effect.
Conclusion
In conclusion, the CoA’s judgement declaring the Finance Act 2023 unconstitutional will result in significant changes to Kenya’s tax regime. However, taxpayers should keep an eye out for the Supreme Court’s determination of the application for a stay of execution, which will provide some clarity on the way forward pending the hearing and determination of the government’s appeal.
Please note that this is not legal advice and is intended primarily for information purposes. If you require tailored advice or further information, please contact us on sarinke@mckayadvocates.com.
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