The High Court has declined to temporarily suspend sections of the Affordable Housing Act, including the collection of the levy, citing public interest in allowing the law to continue until the petitions are resolved.
A three-judge bench underscored that laws enacted by Parliament are presumed constitutional, and unless there is clear evidence of rights violations, the court cannot halt their implementation.
Chief Justice Martha Koome consolidated six petitions challenging various aspects of the Affordable Housing Act of 2023 and assigned Justices Olga Sewe (presiding), John Chigiti, and Josephine Mong’are to hear the cases.
Dr. Magare Gikenyi and other petitioners argued that the absence of a governing board to oversee the fund and uncertainty over the levy’s collection exposed the funds to potential theft and misuse, contravening Article 10(2) of the Constitution, which emphasizes national values, good governance, integrity, transparency, and accountability.
They also pointed out that the Commissioner General of the Kenya Revenue Authority’s mandate is limited to overseeing the authority’s affairs, not collecting the housing levy. Moreover, they informed the court that the housing levy, set at 1.5%, lacked a detailed operational plan as required by law before collecting public funds.
In defense, the government asserted the presumption of constitutionality for all Acts of Parliament. Parliament reinforced this by arguing that the Affordable Housing Act provides a legal framework for the levy, emphasizing that levies are commonplace in Kenya, citing examples like the Road Maintenance Levy and the Petroleum Levy.
The judges concluded that the petitioners failed to show that the contested provisions posed significant risks to life or limb, or sufficiently violated the Bill of Rights to warrant the requested injunctions. They expressed doubt that denying the injunctions would undermine the effectiveness of the petitions.
“It is our finding, therefore, that the petitioners have failed to show that the impugned provisions pose a danger to life or limb or that they threaten the Bill of Rights to warrant the orders sought. We are not persuaded that the petition will be rendered nugatory if the orders sought are not granted,” the judges said.
