The Nullification Of "Senate" Laws ' The Decision In The Senate Vs The Speaker Of The National Assembly & Another

• Published date: 17 November 2020
• Subject Matter: Tax, Income Tax, Sales Taxes: VAT, GST, Tax Authorities
• Law Firm: Bowmans
• Author: Mr Evans Monari

In a decision that highlights the ever increasing power struggle between the two Houses of Parliament, on 29th October 2020, a 3 Judge Bench of the High Court in Petition No. 284 of 2019: The Senate vs The Speaker of the National Assembly & Another ("the Petition") nullified 23 Acts of Parliament ("the Laws") enacted by the National Assembly without reference to and input of the Senate as required under Article 110(3) of the Constitution of Kenya, 2010 ("the Constitution"). The Court further ordered the cessation of any further consideration of all pending Bills for which there was no reference to the Senate as required under the Constitution.

The Petition, which lists all the Laws that were nullified can be found here.

Some of the affected Laws include:

1. The Tax Laws (Amendments) Act, No. 9 of 2018 which introduced amendments in relation to income tax, value added tax and stamp duty;
2. the Capital Markets (Amendments) Act, No. 15 of 2018 which introduced various amendments to the Capital Markets Act, Cap 485A
3. the Computer Misuse and Cybercrime, Act, No. 5 of 2018 which provided for the detection, prohibition, prevention, response, investigation and prosecution of computer and cybercrimes;
4. the Statute Law (Miscellaneous Amendments) Act, 2018 which introduced amendments to the Industrial Property Act, 2001, the Copyright Act 2001, the Anti-Counterfeit Act, 2008 and the Protection of Traditional Knowledge and Cultural Expressions Act, 2016; and
5. the Statute Law (Miscellaneous Amendments) Act, 2019 which introduced amendments to several Acts of Parliament including the Value Added Tax Act, 2013 (No. 35 of 2013).

We will in our subsequent updates issue a summary on the implication of the High Court's decision on some of the laws.

The court suspended the nullification of the Laws for a period of 9 months from the date of the decision (29 October 2020) to allow time for the National Assembly to comply with the provisions of Article 110 (3) of the Constitution and regularise the Laws.

In this regard, the Laws will continue to apply for the period of 9...