Republic v National Assembly & 2 others Exparte Okiya Omtatah Okoiti; Retirement Benefits Authority (Interested Party) [2020] eKLR Case Summary

Court
High Court of Kenya at Nairobi
Category
Civil
Judge(s)
P. Nyamwea
Judgment Date
September 30, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3
Explore the 2020 eKLR case summary on Republic v National Assembly & 2 others Exparte Okiya Omtatah Okoiti, analyzing legal arguments and implications involving the Retirement Benefits Authority.

Case Brief: Republic v National Assembly & 2 others Exparte Okiya Omtatah Okoiti; Retirement Benefits Authority (Interested Party) [2020] eKLR

1. Case Information:
- Name of the Case: Republic v. The National Assembly & Others
- Case Number: Judicial Review Application No. 95 of 2020
- Court: High Court of Kenya at Nairobi
- Date Delivered: 30th September 2020
- Category of Law: Civil
- Judge(s): P. Nyamwea
- Country: Kenya

2. Questions Presented:
The central legal issues in this case revolve around the legality of the amendments made by the Tax Laws (Amendment) Act, 2020 to Section 38(1A) of the Retirement Benefits Act, No. 3 of 1997, and the Retirement Benefits (Mortgage Loans) (Amendment) Regulations, 2020. Specifically, the court needed to determine whether these amendments were enacted lawfully and whether the ex parte applicant was entitled to a stay of their implementation pending the determination of the substantive judicial review application.

3. Facts of the Case:
The applicant, Okiya Omtatah Okoiti, challenged the amendments to the Retirement Benefits Act and associated regulations, arguing that they were introduced illegally and without proper legislative procedure. The amendments were allegedly not included in the original Tax Laws (Amendment) Bill, which was published for public input, and were passed without the necessary public participation. The 1st respondent, The National Assembly, along with the 2nd and 3rd respondents (the Cabinet Secretary for National Treasury and Planning and the Attorney General, respectively), contended that the amendments were validly incorporated during the legislative process.

4. Procedural History:
The High Court granted the applicant leave to commence judicial review proceedings on 13th May 2020, allowing him to seek orders of Certiorari and Prohibition against the respondents regarding the amendments. The court set a hearing for the stay application for 9th June 2020. The applicant filed submissions in support of the stay, arguing that the amendments were unconstitutional and lacked a proper legislative process. The respondents opposed the stay, arguing that the amendments had already been implemented.

5. Analysis:
- Rules: The court considered various provisions of the Constitution of Kenya, including Article 165(3)(d)(i) & (ii) and Article 23(3)(b) & (c), which grant the High Court jurisdiction to interpret the Constitution and issue conservatory orders. The court also referenced the National Assembly Standing Orders and the principle of public participation in the legislative process.
- Case Law: The court cited several precedents, including *Commission for the Implementation of the Constitution v. Speaker of the National Assembly* [2016] eKLR, which established that legislation alleged to conflict with the Constitution is subject to judicial scrutiny. The decision in *Simeon Kioko Kitheka & Others v. County Government of Machakos & Others* [2018] eKLR was also referenced regarding the necessity of public participation in legislative processes.
- Application: The court analyzed whether the applicant demonstrated a prima facie case for the stay of the amendments. It noted that the amendments had been enacted and were in effect, and thus, the court had to consider whether the implementation of these amendments posed an immediate threat to public interest or rights. The court found that the applicant had not sufficiently demonstrated such a threat, and the issues raised would need to be resolved in the substantive hearing.

6. Conclusion:
The High Court declined to grant the stay of the amendments pending the determination of the substantive application. The court found that the applicant did not meet the threshold for establishing immediate harm or a significant public interest at stake. The ruling emphasized the presumption of constitutionality of legislation and the need for caution in suspending laws.

7. Dissent:
There were no dissenting opinions noted in this case, as the ruling was delivered by a single judge.

8. Summary:
The High Court of Kenya ruled against the applicant's request for a stay of the amendments made by the Tax Laws (Amendment) Act, 2020 to the Retirement Benefits Act. The decision underscores the importance of following proper legislative procedures and the presumption of constitutionality of enacted laws. The ruling has significant implications for the legislative process in Kenya, particularly concerning public participation and the scrutiny of amendments to existing laws.

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