Suspended declarations of invalidity: A critique of the Supreme Court’s pronouncements in the Finance Act 2023 decision
by admin on | 2025-04-03 07:46:14
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Recent adjudication has witnessed a major change in judicial attitude toward the suspended declaration of unconstitutionality. Kenyan courts have, in certain cases, welcomed the remedy where findings of invalidity were made. The suspended declaration of unconstitutionality is a remedial device that the courts use to reverse the effects of findings of unconstitutionality thereby validating invalid laws to enable the legislature to correct the constitutionally infirm provisions. The courts act pragmatically under the guise of a self invented power to deem the law different from what it is. The Supreme Court of Kenya in The Cabinet Secretary for the National Treasury & 4 Others v Okiya Omtatah Okoiti & 52 Others; Gautam Bhatia (amicus curiae) was expected to bring about clarity on the basis and circumstances upon which the remedy could be issued. However, the Supreme Court in search of a more pragmatic approach to constitutional decision-making drifted off from the core principles of the constitution and got it wrong by neglecting to interpret the supremacy clause vis a vis the suspended declaration, plunging the country into a state of judicial heresy. This article runs against the judicial tide by criticising how the Supreme Court dealt with the question of suspended declaration of unconstitutionality in the Finance Act 2023 decision. I. Introduction Kenyan Courts routinely perform strong-form judicial reviews of laws for constitutionality. Judicial review is the practice of the courts subjecting legislation to scrutiny for consistency with the Constitution.1 Once a determination of...Read more
