The government has defended the affordable housing programme in court, arguing that the initiative is designed to meet the critical housing needs of the citizens.
Arguing before a three-judge bench, the Cabinet Secretaries for Lands and Housing and Treasury said the Affordable Housing Act, 2024 sought to fulfil the constitutional right that every Kenyan should have adequate and accessible housing. Employees pay a levy of 1.5 percent of their gross pay —matched by employers— to fund the housing programme.
Six petitions were filed to challenge provisions of the Affordable Housing Act, 2024, for being unconstitutional.
Among the petitioners are Dr Magare Gikenyi, Senator Okiya Omtatah and Trade Union Congress of Kenya, who argue that the Act is a threat to the Constitution.
The petitioners have also sought the quashing of the Government Financial Management (Kenya Slum Upgrading, Low Cost Housing and Infrastructure Trust Fund) Regulations and for the government to be compelled to refund the amounts already collected from Kenyans.
The government told Justices Olga Sewe, John Chigiti and Josephine Mong’are that the Affordable Housing Act, 2024 was not enacted in a vacuum but at the backdrop of a sustained public discourse and judicial intervention highlighting the need for “mobilisation of adequate resources to ensure the right to affordable housing is actualised.”
Through former Attorney General Githu Muigai, the government said soon after the High Court declared the housing levy illegal, the State sought to comply with the court’s directive and also satisfy the constitutional requirements to provide adequate housing.
He said thereafter, the government engaged Parliament to come up with necessary legislative mechanisms for enactment of the Affordable Housing Act.
“The levy is imposed to raise funds that will be used to enable all citizens have a measure of equitable access to decent affordable housing,” Prof Muigai submitted.
CS Treasury John Mbadi defended the appointment of Kenya Revenue Authority (KRA) Commissioner General as collector of the revenue, saying it was not unique as it happened with the Road Maintenance Levy Fund Act and Petroleum Development Levy Act.
The government also dismissed claims that the housing levy amounts to double taxation particularly on individuals who have taken out mortgages prior to the Act.
“A mortgage is purely contractual. It is also not true that a majority of the Kenyans are servicing mortgages as the petitioners allege,” Senior Counsel Kiragu Kimani submitted.
On whether the Bill was subjected to public participation before it was enacted, the government said there was direct participation through memoranda and submission to Parliament by members of the public, indirect participation through debate, amendments and proposals done by the members of Parliament