The government ambitious project to deliver affordable housing to Kenyans suffered yet another blow after the Court of Appeal dismissed an application seeking to lift decision by the High Court which declared the affordable housing levy unconstitutional.
- The housing levy is payable by the employee and employer at a rate of one point five per cent of the employee’s gross monthly salary by the employee, and one point five cent of the employee’s gross salary by the employer.
- The levy is part of a finance law adopted in June last year that also doubled the value-added tax on fuel.
- The government sought to reverse the November ruling by Justice Majanja which found that introduction of the housing levy lacks a comprehensive legal framework in violation of 2010 constitution.
The High Court held that the Housing Levy was introduced without a legal framework. It also held that the levy was targeting a section of Kenyans. On Friday, a three-judge bench of the court of appeal in a ruling argued that the move safeguards public interest should the outcome of the appeal sustain the decision of the High Court.
“In our view, public interest lies in awaiting the determination of the appeal. This is because if the stay sought is granted at this stage, should the appellate Court affirm the impugned decision, then some far-reaching decisions that will have been undertaken pursuant to the impugned laws may not be reversible,” Appellate Court judges Lydia Achode, John Mativo and Paul Gachoka said, “Public interest in our view tilts favour of not granting the stay or the suspension sought. Public interest tilts in favour awaiting the determination of the issues raised in the intended appeals.”
On the first limb, that is whether or not the 4 applications have demonstrated that the intended appeals are arguable. We find that whether or not the trial Court was correct in concluding that the impugned sections are unconstitutional is not an idle ground. Whether or not the trial Court had jurisdiction to stay a declaration on constitutional invalidity is an arguable ground.
Lastly, whether or not the trial Court was correct in upholding the constitutional validity of some of the challenged provisions is also an arguable ground.
“In conclusion, we find and hold that none of the 4 consolidated applications satisfies both limbs. Accordingly, the applications are hereby dismissed. We make no orders as to Costs. However, we direct that the appeals be heard expeditiously so that the issues raised in the appeals can be resolved with finality.”
Court Declares Housing Levy Unconstitutional – Kenyan Wallstreet
