The number of cases filed challenging the legality and implementation of the Affordable Housing Act continues to rise.
At least seven petitions have been filed at the High Court in Nakuru and Nairobi. The latest to be filed is a petition by Nakuru-based lawyer Peter Okiro.
Okiro through lawyer Kipkoech Ng’etich challenges various sections of the Act claiming they are unconstitutional.
He argues that Sections 4 and 5 of the Affordable Housing Levy Act violate Articles 40 and 209 (5) of the Constitution to the extent that the law imposes a mandatory levy on the income of all citizens hence depriving them the sanctity of their right to property.
The government started implementing the Sections 4 and 5 on March 19.
Further, Okiro noted that the two sections violate the Constitution as they affect remuneration and benefits of judges and other employees.
He argued that Sections 16, 17 and 26 of the Affordable Housing Act, violate the provisions of Articles 207 (1) and the Fourth Schedule of the Constitution on the distribution of functions between the National and county governments by excluding the devolved units from collecting the affordable housing levy.
Okiro claims that the government has overthrown the Constitution by legislating political rhetoric into an Act of Parliament.
He wants the court to order the government to stop collecting the housing levy pending the hearing and determination of the case. Okiro argues that the levy is an attack on judicial independence.
“The Finance Act on the housing levy was ultimately declared unconstitutional by this court sitting in Nairobi. It had been implemented before the declaration by the three-judge bench, if you are to stay the specific sections of the Act, the government loses nothing,” said Kipkoech who appeared before Justice Patricia Gichohi.
The lawyer said if the court does not issue the sought conservatory orders then the lives of several salaried people will be disrupted.
He argued that if the petition succeeds then those who had paid housing levy will have difficulty recovering their money.
“I agree that there is a plethora of petitions, that may mean the legislation is chaotic and the entire country is up in arms and hence call for the intervention of the court,” he said.
The Attorney General, on the other hand, wants the matter referred to Nairobi.
The AG opposed the application for conservatory orders stopping the implementation of the contentious Sections of the Affordable Housing Act.
State Counsel Prisca Adomeyon in an affidavit said the court in Nakuru lacks jurisdiction and the case has to be referred to Nairobi and be mentioned alongside other related files.
The AG argued that the petition by Okiro raises similar issues as the ones filed in Nairobi and should be heard together.
The National Assembly through lawyer Kuyioni Josphat has since filed an application to be enjoined in the case.
Kuyioni said the National Assembly’s participation in the matter is to safeguard its institutional rights and defend the validity and constitutionality of its legislative decisions.
