A five-judge bench of the Court of Appeal will on January 19 hear a case challenging the Affordable Housing Act and the mandatory levy imposed on salaried workers and their employers, in a case that could determine the future of one of President William Ruto’s flagship projects.
Giving directions on Thursday, the court directed any party that has not filed its written submissions to do so within 24 hours of the hearing notice.
“In this regard, the parties herein are reminded to comply with the directions given during case management on the filing of their respective submissions and lists of authorities.”
The appeal was filed by more than 40 petitioners, including Nakuru-based surgeon Dr Magare-Gikenyi, after the High Court cleared the government to proceed with the housing programme.
In a judgment delivered in October last year, a three-judge bench of the High Court ruled that the Act was constitutional, finding that it seeks to protect, promote and fulfil the right to adequate housing—a socio-economic right guaranteed to all Kenyans.
The court further held that the mandatory 1.5 percent levy imposed on an employee’s gross monthly salary, matched by a similar contribution from employers, could not be said to be unconstitutional.
However, Dr Gikenyi argues that forcing employed Kenyans to contribute to the programme without any guarantee of receiving a house is unlawful. He contends that it is unjust for the government to compel individuals in formal employment to contribute to the scheme regardless of their housing status.
“In addition, forcing people to contribute to affordable housing units against their will so that others may benefit is repugnant to morality and the Constitution,” Dr Gikenyi submitted.
He further argues that the legal framework fails to consider those already servicing mortgages or those who already own homes, as well as issues of preference, timing, and housing style.
“From the foregoing, we submit that the affordable housing legal framework is fundamentally flawed, as it discriminatively burdens citizens who do not benefit from the programme,” he stated in court documents.
Dr Gikenyi further pointed out that section 54 of the Act purports to limit or restrict ownership and use of a fully owned house.
The section, he said, unconstitutionally limits what the owner of the housing unit can do with it by bringing in a precondition of getting consent of the affordable housing board, yet one has absolute ownership.
The section states: “Except with a prior written consent of the board, a purchaser of an affordable housing unit under this act shall not by contract, agreement or otherwise, sell or agree to sell his or her unit or any interest therein to any other person.”
Dr Gikenyi said a sectional owner has the same right as other property owners and that their restrictions is not justiciable as provided in Article 24 of the Constitution.
The government defended the Act saying it was enacted and passed in accordance with the requirements of the constitution and in fulfilment of the State’s obligation to provide accessible and adequate housing as outlined in Article 21 and 43(1) (b) of the constitution.
The government added that the Act was effort by the government aimed at realising the right to adequate housing, as the State is obligated to ensure that every citizen has access to adequate housing.
