Activists Move to Court to Block Operationalization of Affordable Housing Act

A Nakuru-based doctor and four others moved to the High Court seeking orders to temporarily suspend the commencement, levying, obligations, operationalization, and effecting of the Affordable Housing Act, 2023.

In a petition filed on Tuesday, Benjamin Magare Gikenyi argued there is no justification as provided by the Act to limit enjoyment of rights to individuals.

The new law was assented to by president Ruto on March 19.

The petitioners want land Cabinet Secretary Alice Wahome barred from evicting Kenyans from public land purportedly for purposes of Affordable Housing Act

“…pending hearing and determination of this application and petition inter parties, a conservatory order be and is hereby issued suspending the commencement, levying, obligation operationalization and effecting the contents of the affordable housing act 2023 and/or ay act purporting to deal with affordable housing in the republic of Kenya.”

Magare, a doctor based in Nakuru, Pauline Nduta, Philemon Abuga, Shallum Kaka and Jamlick Otondi Nakuru residents accuse the national government of taking over the housing function a responsibility of the County government and introducing a shadowy entity “collector” to collect funds instead of the Kenya revenue authority which is mandated to collect funds on behalf of national government.

Read: President Ruto Signs into Law Contentious Affordable Housing Bill

“The act have unconstitutionally provided restrictions on what to do with one’s property contrary to article 40 of the Constitution,” read the court papers.

They argue the new law attempts to introduce communist ideologies in Kenya, despite the Constitution not permitting such ideologies.

They criticize the Act for purporting to use public and community land for private gain through the affordable housing fund.

The petitioners argue that selling housing units on public land is governed by constitutional provisions and as such “an act of parliament cannot purport to oust provisions of the constitution where a house built on public and is sold to private individuals/corporate”

They question the rationale behind evicting Kenyans from public land which by law, is held and managed by county governments in trust for communities, in pretext of building affordable housing on the land, only to sell it to private individuals.

Furthermore, they say the housing levy has been established with faulty legal framework and “structures for implementations, making its application a matter for the executive’s discretion and, therefore, making it susceptible to abuse in violation of the principle of public finance.”

Read Also: Housing Levy: National Assembly Moves Battle to the Supreme Court

There are no guarantees to contributors of benefits and that penalties for stealing from the fund are very low they say.

“The fund subjects employees and other income earners to cruel, inhuman and degrading treatments.”

According to the petitioners, the Act is discriminatory because it outlaws the corporations from owning a house, yet they pay tax and contribute to the economy.

They accuse the respondents of blatantly dismissing the rejection of the housing act by majority during public participation and proceeding to impose the levy “rendering public participation a cosmetic procedure and a waste of public resources.”

“The rejection of the said levy was on the basis that the same would amount to over taxation of the people, who are already overburdened by multitude of taxes and levies.”

The activists now say the government is subjecting its citizens to servitude contrary to article 25(b) of the Constitution, which is explicit that freedom from servitude is a non-limitable right by forcing them to contribute to the levy/tax without their will and assurance of any benefit they stand to gain by contributing.

“The Affordable Housing Act has failed to appreciate that other Kenyans “ameshajipanga na housing.” Including place, style, design, mode of payment among other things and that there is no rational need to force all Kenyans to pay the said levy-AHL just for the others.”

The new law will see employed Kenyans remit a deduction of 1.5 percent from their monthly salaries and employers an equal amount to the housing fund.

In the petition lands CS Alice Wahome, Treasury Cs Njuguna Ndungu, the National Assembly and the Senate have been sued.

Read Also: We Will Appeal Housing Levy Ruling – President Ruto

The Court of Appeal on January, 26 upheld the High Court’s order that declared the housing levy as unconstitutional.

The courts cited public interest in the matter, underscoring the high court ruling that the housing levy was introduced without legal framework.

““The trial court held that the Housing Levy was introduced without a legal framework. It also held that the levy was targeting a section of Kenyans. In our view, public interest lies in awaiting the determination of the appeal.

This is because if the stay sought is granted at this stage, should the appellate Court affirm the impugned decision, then some far-reaching decisions that will have been undertaken pursuant to the impugned laws may not be reversible,” reads the court ruling in part.

However the Ruto led government holds that the suspension provided room for restructuring the bill and now provides a new legal framework for the levy.

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