Court of Appeal refuses, for the time being, to reinstate the Housing Levy

Introduction

In the case of the National Assembly vs Okiya Omtata and ors, which was consolidated with various other matters the?Court of Appeal considered applications to stay a decision of the High Court pending an appeal of the said decision of the High Court. The High Court had found, inter-alia, that the Housing Levy, pushed for by the Ruto Government, had been implemented without a proper legal framework.

Facts

The National Assembly enacted various legislations whose aim, inter-alia, was to introduce the Housing Levy, that has been championed by the Ruto Government. Several challenges were made in the High Court against the said legislation, on the ground that the same were unconstitutional, with the result that at an interim stage, the High Court of Kenya declared some of the provisions of the said legislation to be unconstitutional and thus issued conservatory orders against them. Aggrieved by the said decision, several Government bodies appealed to the Court of Appeal against the said decision of the High Court of Kenya and filed several applications for a stay of execution against the said decision of the High Court pending the hearing of the said appeals. The said applications for stay were consolidated.

Findings

The Court of Appeal analyzed the four consolidated applications (E577 of 2023, E581 of 2023, E585 of 2023, and E596 of 2023) seeking a stay of execution and/or conservatory orders pending the hearing and determination of the appeal against part of the judgment and decree of the High Court of Kenya. The Court of Appeal addressed the three key criteria for granting a stay of execution or conservatory orders: the arguability of the intended appeal, whether the appeal would be rendered nugatory if the stay is not granted, and whether it is in the public interest to grant the stay.

The Court of Appeal found that the applicants had demonstrated an arguable appeal in each of the applications, satisfying the first criterion. However, the Court of Appeal carefully evaluated whether refusing the stay would render the appeal nugatory. The Court of Appeal examined the arguments presented by the applicants and respondents concerning irreparable harm, reversible consequences, and public interest considerations. Ultimately, the Court of Appeal determined that the applicants had not sufficiently demonstrated that the appeal would be rendered nugatory if the stay is not granted.

Additionally, the Court of Appeal addressed the concept of “nugatory” in the context of the applications, emphasizing the need for reversible consequences or irreparable harm to justify a stay of execution. The Court of Appeal carefully considered the evidence and arguments presented by the parties to determine whether irreparable harm would occur if the orders were not granted.

Furthermore, the Court of Appeal made a significant observation about the mootness of one of the applications, noting that further legal proceedings would have no effect, and the events had placed it beyond the reach of the law. The Court of Appeal, therefore, declined to consider a moot application, emphasizing the principle that courts are reluctant to make pronouncements on academic or hypothetical issues.

Conclusion

The decision demonstrated a careful and meticulous analysis of the arguability of the intended appeal, the potential consequences of refusing a stay, and the public interest considerations, all of which are essential factors in determining whether to grant a stay of execution or conservatory orders.

Overall, the decision reflected a balanced and reasoned approach to evaluating the applications and highlighted the stringent criteria that must be met to justify granting a stay of execution or conservatory orders in the context of the appeals before the Court.

The decision is available on the following link, i.e., https://okello.files.wordpress.com/2024/01/national-assembly-vs-okiya-omtata-and-ors.pdf.