LSK to sue KRA for illegal collection of housing levy

Outgoing LSK president Eric Theuri (centre) speaks. Left, vice-president Mwaura Kabata and newly-elected president Faith Odhiambo. [Edward Kiplimo,Standard]

Law Society of Kenya (LSK) has threatened to move to court to challenge the move by the Kenya Revenue Authority (KRA) to collect housing levy despite the court order that declared it unconstitutional.

Outgoing LSK president Eric Theuri said the High Court pronounced itself on the unconstitutionality of the housing levy and a subsequent application in the Court of Appeal by the government challenging the decision was also thrown out.

"It has come to our attention that the Kenya Revenue Authority and other government agencies have despite the declaration of Section 84 as being unconstitutional have continued to deduct and remit to the Kenya Revenue Authority the housing levy," said Theuri.

"There is no legal basis to deduct the housing levy and this action amounts to contempt of court and arbitrary imposition of tax. The Law Society of Kenya shall immediately commence contempt of court proceedings against the Commissioner General of the Kenya Revenue," he added.

Theuri called on employees who have suffered housing levy deductions to share their pay slips to facilitate the filing of the application seeking a refund of the same.

"The pay slips will be redacted to conceal identity details that can be used to identify and possibly punish any employees that share the details with us," he said.

On November 28, 2023, the High Court rendered a decision in the consolidated petitions challenging the enactment of Section 84 of the Finance Act, 2023 that introduced the Housing Levy and declared the said section unconstitutional.

The state filed an application in the Court of Appeal to challenge the decision but the application was dismissed on January 26, 2023 meaning that the declaration of the unconstitutionality came into force and Section 84 of the Finance Act has no force of law.

"We further implore the Kenya Revenue Authority and other accounting officers to note that currently there is no law authorising the implementation of the housing levy. Taxes cannot be collected in the absence of an enabling legislation," said Theuri.

The move by LSK came after Attorney General Justin Muturi issued an advisory cautioning KRA against collecting housing levy after it was declared illegal.

LSK warned that the disregard of court orders by government agencies will lead to a breakdown of law and order if it is not checked.

"The president and all state officers have taken an oath to protect the Constitution of Kenya, we are worried when we see a trend emerging within government to disobey court orders," said Theuri.

"This can only mean that there is an informal policy not to comply with court orders that the government does not agree with," he added.

Further, the society took issue with the use of excessive force by police officers against Kenya Medical Practitioners and Dentists Union (KMPDU) officials and members during protests. KMPDU Secretary General Davji Atellah sustained serious injuries after he was hit by a tear gas canister.

"The Law Society of Kenya notes with concern the disregard by the police of their constitutional duty, violation of rights to protest and disproportionate use of force. LSK will join in solidarity with KMPDU in taking all necessary action to ensure justice is served for Dr Davji," said LSK president-elect Faith Adhiambo.

The medics were protesting over the delayed posting of medical interns and payment of fees for postgraduate students.

LSK demanded that the Inspector General of Police and the Independent Policing Oversight Authority (IPOA) take immediate steps to hold to account the police officers who used excessive force against the doctors.

"We note with concern that this comes against the backdrop of live bullets being used against members of the Law Society during a protest in Nakuru county last month," said Mwaura Kabata the newly elected LSK vice president.

"It is disconcerting that the police appear to have taken a path of using force against professional bodies seeking to protect the rights and interests of their members and the people of Kenya," Kabata added.

On the planned deployment of police officers to Haiti, Theuri said they will interrogate the agreement signed between President William Ruto and Haiti Prime Minister Ariel Henry to determine if it is within the law.