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September 21, 2018

Blow as High Court declines to suspend fuel levy

High Court Judge Chacha Mwita at Milimani court. /FILE
High Court Judge Chacha Mwita at Milimani court. /FILE

Kenyans will continue to pay high price for fuel after high court declined to suspend implementation of 16 per cent levy.

High Court judge Chacha Mwita declined to issue temporary orders to stop the implementation of the new levy despite hue and cry from Kenyans.

Justice Mwita agreed that the case filed by activist Okiya Omtatah to challenge the levy is urgent and of great public interest but ought to be heard in presence of all parties.

He directed Omtatah to serve his suit papers on the other parties namely treasury CS Henry Rotich, energy regulatory committee, KRA and national assembly and come for direction on September 10.

Omtatah in his suit papers argues that the imposition of new levy amounts to double taxation since the transaction value has inbuilt taxes, including excise tax, road maintenance levy, petroleum development levy, fuel levy tax and railway development tax. Omtatah also says the decision by state violates the constitution because it has an effect of limiting rights to property and advancement of social economic rights.

Earlier in the case, lawyer Dr John Khaminwa pleading with the judge to give Kenyans reprieve went to great lengths to explain that despite Kenya having the power to control prices of fuel same should be subject to the constitution.

He represents Wycliffe Nyakina.

In his view, the decision to impose 16 per cent fuel levy has grossly violated the constitution because of several reasons.

Read:Omtatah moves to court to stop 16% VAT on fuel

Firstly, he said, it was done by the executive in total disregard of the decision by the legislature to suspend the same until 2020 which is seen as interference with the independence of the latter.

"The executive has encroached on powers of the legislature despite latter being required to operate independently. Let national assembly be allowed to operate independently because it's not an extension of the executive. All of us should respect parameters of the national assembly," said the lawyer.

Secondly, he said the huge fuel hike has an effect of restricting or limiting the right to movement and also will affect the livelihoods of Kenyans causing tremendous hardship to the people.

"Let me bring this home...my lord to run the court judges rely on supporting staff who will not have enough money to pay matatu fare to be here at 8 am, the supporting staff will not have money to put their children in school because their income would have been considerably reduced," said Khaminwa.

Thirdly Dr Khaminwa noted that the right of participation provided in article 10 is violated because Kenyans were not granted an opportunity to participate in the process that enhanced fuel by 16 per cent.

"And for this reason we the court to give orders suspending the implementation of fuel levy," said the lawyer.

The judge hinted that premature if he granted any temporary order right now when the lawmaking has not been completed given that the law imposing the new levy is yet to be assented to by the President.

Meanwhile, COTU has also filed a similar case challenging same fuel levy.

Read: We'll resolve fuel crisis, Ruto assures as pump prices spark outrage

More: Stop shedding crocodile tears, Moses Kuria tells MPs opposed to 16% VAT on fuel

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