At least seven Human rights lobbies have moved to court to appeal against the government's decision to backdate the Housing Fund taxes to July 1, 2023.
The groups include Kenya Human Rights Commission (KHRC), Katiba Institute, The Institute for Social Accountability (TISA), Transparency International Kenya, International Commission of Jurist (ICJ Kenya), Siasa Place and Tribeless Youth.
Through Advocate Ochiel Dudley, the lobbies on Friday filed a certificate of urgency maintaining that the move by the government would have adverse effects on health and livelihood of Kenyans if conservatory orders were not issued.
Following the lifting of the orders suspending the implementation of the Finance Act, which houses the taxes, the Ministry of Lands on Wednesday said the levy was now in effect from July 1.
"The levy is payable by the employee and employer at a rate of one point five per centum (1.5 per cent) of the employee's gross monthly salary by the employee, and one point five per centum of the employee's monthly gross salary by the employer, as outlined in the Finance Act 2023," a notice read.
Aggrieved by the announcement, the rights' groups filed the aforesaid petition dated August 4, 2023, seeking to have various sections of the Act suspended.
They argued that the implementation of the provisions has an irreversible effect and cannot be refunded.
"The matter is urgent and requires an August recess hearing because of the intervening threat to lives and livelihoods and due to the retrospective date of 1st July 2023," Ochiel said.
"Pending hearing and determination of this application, the court be pleased to issue conservatory orders suspending: section 5 of the Income Tax Act, Cap 470, amended by section 5 of the Finance Act, 2023; section 84 of the Finance Act, 2023 amending section 31B of the Employment Act, 2017; section 37(a)(iii) of the Finance Act, 2023 amending section A part I of the First Schedule to the Value Added Tax Act, 2013."
Others include: "Sections 96, 92, 93, 94, and 95 of the Finance Act, 2023 amending section 5(1)(f), 5A, 5B, and 6 of the Retirement Benefits (Deputy President and Designated State Officers) Act, 2015; Section 38 of the Finance Act, 2022 amending Part A of the Second Schedule to the Value Added Tax Act, 2013; and section 47(a)(v) of the Finance Act, 2023 amending Part I of the First Schedule to the Excise Duty Act, 2015. The court further does suspend the decision to give the Finance Act retrospective effect to 1st July 2023 as opposed to the date of Court of Appeal ruling lifting the conservatory orders."
The petitioners further argued that the Act concerns county government in functions like housing but was never passed by the Senate.
The lobbies also submitted that giving the Finance Act retrospective effect to July 1, as opposed to July 28, when the Court of Appeal suspended implementation barring orders will be similar to punishing them for questioning the court.
The petition was supported by an affidavit signed by one Lempaa Suyianka.
The respondents are listed as the National Assembly, Attorney General while the Law Society of Kenya is named as an interested party.
