The High Court in Nairobi has struck out a petition challenging provisions of the Finance Bill 2026, leaving National Treasury’s revenue measures under the enacted Finance Act available for implementation.
Justice David Mburu ruled that the petition by Consumers Federation of Kenya (Cofek) was filed prematurely while the Bill was still undergoing the legislative process before Parliament.
“This petition, as filed, is premature. The process of the bill when this petition was filed had not ripened to a law. This court reiterates that its constitutional mandate does not extend to reviewing broad policy suggestions or draft Bills that have not crystallized into enforceable legal instruments,” he said.
Cofek filed the public interest case on June 15, 2026, while Parliament was considering the Bill. It sought declarations that several provisions were unconstitutional and orders stopping their enactment and implementation.
The petition challenged provisions dealing with, among other things, withholding tax on scrap-metal transactions, virtual-asset reporting, expanded KRA enforcement powers, removal of VAT zero-rating and Kenya’s EAC treaty obligations.
Cofek also asked the court to allow the case to continue automatically against corresponding provisions of the Finance Act after the Bill became law on June 23, turning it into the Finance Act 2026, before the petition was decided.
The Kenya Revenue Authority (KRA), the Attorney-General and National Assembly opposed the case, arguing that the court could not determine a Bill that had not completed the law-making process.
KRA said the Bill had no force of law when Cofek filed its petition and could still be amended, deleted or rejected. “The proceedings are premature and offend the doctrine of ripeness because, at the time of filing, the Finance Bill, 2026 had not yet been enacted into law,” said the tax authority in a preliminary objection.
The Attorney General and the National Assembly argued that the High Court lacked jurisdiction to determine the constitutionality of a legislative proposal before it has completed the legislative
process and become law.
Cofek responded that the Constitution allows courts to act where constitutional rights are threatened before an actual violation occurs.
The federation said the tax measures raised concerns involving consumer protection, privacy and fair administrative action.
However, Justice Mburu held that there was no ripe controversy for determination. The judge relied on the doctrine of ripeness, which requires a dispute to have matured enough for judicial relief.
“The petitioners had the liberty to petition Parliament under Article 119(1) of the Constitution, they retain the right to challenge the resulting legislation, after it was enacted, that is the Finance Act, 2026,” he said:
The court held that the Bill was still a proposal when Cofek sued and remained subject to parliamentary changes.
Justice Mburu also held that allowing the case to proceed would interfere with Parliament’s legislative function. “This court’s jurisdiction cannot be invoked to stop Parliament from performing its duties,” he said.
The judge rejected Cofek’s argument that the case should automatically continue after enactment, saying the Finance Bill and Finance Act were legally distinct and the pleadings challenged only the Bill.
“A prayer is relief sought on the basis of a pleaded cause of action; it does not prospectively create a new cause of action against legislation that did not exist when the pleading was filed,” Justice Mburu said.
The court said any constitutional challenge to the Finance Act must be filed through pleadings directed at the enacted law.
It did not decide whether the Finance Act itself is constitutional. “No finding has been made on the merits of any such challenge,” the judge said.
The Finance Act was published in the Kenya Gazette on June 26 and took effect mainly on July 1, 2026, with some provisions commencing later.
Cofek’s submissions raised concerns over digital-payment taxation, VAT changes, virtual-asset reporting, scrap-metal withholding tax and wider KRA powers. The federation also called for impact assessments and safeguards on several proposed tax measures.
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