President William Ruto received a major boost on Tuesday after the High Court gave his pet project- the affordable housing programme- a clean bill of health by dismissing six petitions challenging the Affordable Housing Act.
A bench of three judges of the court ruled that the Act met the required threshold of public participation before it was enacted in March this year.
Justices Olga Sewe, John Chigiti and Josephine Mong’are further ruled that the housing levy- imposed at the rate of 1.5 percent of the employee’s total gross monthly salary, was properly enacted in accordance with the Constitution.
Employees are deducted 1.5 percent of their gross salary and is remitted together with the employer’s contribution of similar percentage.
“Taking into the account the principles set out and the burden of proof, we are satisfied that there was adequate public participation before the enactment of the Act,” said the judges.
The judges also ruled that the petitioners challenging the imposition of the tax failed to prove that the levy was discriminatory and imposes an extra burden on the taxpayer.
Dr Magare Gikenyi and others had argued that the levy was discriminatory as it targeted those in formal employment while excluding those in informal employment.
The judges noted although the government admitted that public participation was conducted in 19 counties, key stakeholders were invited to present their view before Parliament through oral submissions and memoranda.
The court noted that whereas public participation is crucial, must be authentic and not be treated as a mere formality, it does not necessarily mean that all the views must be taken into consideration.
“The question to be answered is whether the opportunity was afforded to the public to give their views,” said the judges and ruled that there was evidence that adequate public participation was conducted before the law was passed.
The judges also dismissed the claims that the national government was encroaching on the functions of the county governments by seeking to construct houses across the country.
The petitioners had argued the role of the national government was agenda setting and policy formulation but the judges said housing is a shared function and by carrying out the mandate together, both levels of government were promoting interdependence.
The government defended the Act arguing that the housing levy is meant to enable all citizens have a measure of equitable access to decent affordable housing, pursuant to Article 43 of the constitution.
The government further said affordable housing levy extends beyond salaried employees to include persons who have other sources of income.
According to CS Lands and Housing Alice Muthoni, the revenue base to include all persons, irrespective of their employment status.
The court said they saw no fault on the appointment of commissioner general of the Kenya Revenue Authority (KRA) as collector of the revenue, as submitted by Treasury CS John Mbadi.
Dr Gikenyi had on his part submitted that the constitution does not talk of forced ownership of housing and debt recovery in case of failure to pay.
The Nakuru-based doctor said the constitution does not envisage a situation where everyone including those who already have accessible and adequate housing are forced to pay to access housing.
“That the questioned action or omissions to the extent that the respondents (government) are forcing Kenyans to mandatorily contribute so that they can own a house as opposed to access a house is unconstitutional,” he said.
