Surgeon takes fight against housing levy to Court of Appeal

Appearing before a five-judge bench of the Court of Appeal yesterday, Dr Magare Gikenyi said the legal framework sustaining the housing programme is fundamentally flawed, as it places an unfair burden on Kenyans who may never benefit from the initiative.

The medic argued that compelling employed Kenyans to surrender 1.5 per cent of their gross salary to finance housing for others is unjust and morally wrong.

“Moreover, the levy disregards the diversity of individual needs and preferences, denying employees the opportunity to allocate their resources according to their own priorities and circumstances,” he submitted.

Last year, the High Court dismissed several petitions challenging the levy and President William Ruto’s affordable housing programme. The court ruled that the Affordable Housing Act was passed in accordance with the law. More than 40 petitions have since been filed, seeking to overturn that decision.

Dr Gikenyi also accused the national government of encroaching on a function of the counties. He said housing is a devolved function.

Read: Five judges to hear appeal against housing levy

“From the foregoing, housing is a function of county governments and not the national government. The involvement of the national government beyond policy formulation is contrary to the Fourth Schedule, paragraph 8(d), which restricts the national government to policy and leaves housing to county governments,” he told the court.

Read: Why doctor wants court to declare housing levy illegal

Dr Gikenyi further argued that the government collects money from Kenyans without guaranteeing them access to the houses.

“This violates the taxation principle of a fair and equitable tax burden,” he said, adding that deducting income from one person to enable another to acquire a house amounts to slavery and servitude.

“We submit that this Act entrenches slavery and servitude contrary to Article 25(b) of the Constitution,” he stated.

In addition to seeking the nullification of the Act and the levy, the petitioners want the government to be compelled to refund all monies collected under the programme.

The government opposed the appeal, and asked the court to dismiss the cases. Through the National Housing Corporation, it argued that the realisation of the right to housing under both the Constitution and international law requires coordinated and complementary action between the national and county governments.

Read: Win for Ruto as High Court rules that Housing Levy is constitutional

Senior Counsel Eric Theuri for the National Housing Corporation submitted that while county governments play a critical role in planning and implementing housing projects, national policy direction, resource allocation, and regulation are necessary to avoid fragmentation, inequality, and unsustainable outcomes.

Mr Theuri also noted that the High Court found that Parliament had conducted public participation by inviting views from a wide range of stakeholders, including civil society organisations, professional bodies, and members of the public.

Although public participation was conducted in 19 counties, the High Court observed that key stakeholders were also invited to submit oral presentations and memoranda before Parliament.

The court emphasised that while public participation must be genuine and not treated as a mere formality, it does not require that all views be adopted.

For her part, Housing Cabinet Secretary Alice Wahome told the court that the Affordable Housing Levy is not limited to salaried employees but extends to individuals with other sources of income.

According to the CS, the intention is to broaden the revenue base to include all persons, regardless of their employment status.

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