Court declines to quash excise duty on imported pasta


The High Court has dismissed a petition challenging 20 percent excise duty imposed on imported pasta, which was introduced through the Finance Bill 2021.

Busia Senator Okiya Omtatah wanted the excise duty quashed arguing that it was introduced on the floor of the House, without public participation.

Mr Omtatah further said the amendment will increase the cost of imported pasta making it inaccessible to most Kenyans.

Justice Hedwig Ong’udi dismissed the petition saying Mr Omtatah failed to show how the increase of the excise duty was contrary to the well-defined constitutional mandate of Parliament in the enactment of laws or that the enactment violated the laid down principles of the legislative process.

“In my view, allowing the petitioner’s argument that the 20 percent excise duty increase on imported pasta is unconstitutional when the imposition of taxes in and of itself is Parliament’s constitutional mandate would be an error and untenable in light of the purposes of the constitution,” the judge said.

Mr Omtatah argued that the National Assembly had no capacity in law, at the Committee of the Whole House when the Bill was read a Third and final time, to effect the new substantive amendment to the Finance Bill 2021, imposing the 20 percent excise duty on pasta.

He further said an advertisement by the Clerk of National Assembly calling for public participation on the Finance Bill did not state that the said amendment would be considered.

He said the tax is unreasonable to the extent that the consumer will buy the imported pasta at more than double its cost on the international market making the tax regime unreasonable, unjustifiable, and punitive.

Parliament said it facilitated public participation by placing an advertisement in the local dailies and the Committee on Finance and National Planning held public hearings on the Finance Bill, 2021.

The court heard that the rate of taxation is a policy decision solely within the mandate of the Executive and enacted by Parliament and so the court should decline to make policy decisions, which are solely within the realm of the other arms of government.

Kenya Revenue Authority (KRA) on its part said the amendment on imported pasta was first introduced at a public participation discussion forum.

As such, the amendment was based on the recommendation from the public discussion forum that was thereafter picked and presented to the floor of the House for debate.

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