Win for Kenyans as Housing Levy is declared unconstitutional

It is a win for employed Kenyans after the High Court in Nairobi declared the Housing Levy contained in the Finance Act 2023 unconstitutional.

The court said that the levy was unconstitutional and vague and that there was no law allowing the Kenya Revenue Authority (KRA) to collect it.

The court also found that the levy was discriminatory since it targeted only employed Kenyans and the government did not demonstrate why it excluded other categories of income earners.

It was delivered by a three-judge bench comprising David Majanja, Christine Meoli and Lawrence Mugambi on Tuesday, November 28, who heard various petitions challenging the Finance Act 2023.

The National Assembly passed the Finance Act 2023 on June 22, 2023, and later assented by President William Ruto on June 26.

The Act, which was supposed to come into force on July 1, was challenged through multiple petitions. On June 30, Justice Mugure Thande of the High Court issued orders stopping its implementation until the case was heard and determined.

The government appealed this decision and on July 29, it got a reprieve after the Court of Appeal lifted the orders. The case was heard on September 13.

The petitioners, led by Busia Senator Okiya Omtatah, argued that the Finance Bill contained amendments to several laws that had nothing to do with raising revenue and laws that affected the work of the Senate to protect the interests of counties and their governments.

"An order is granted prohibiting the respondent from collecting/ charging or otherwise charging on Affordable Housing Act based on section 84 of the Finance Act and all prayers on the consolidated petition not specifically granted," Judge Majanja ruled.

The court also declared unconstitutional the amendments to the Kenya Roads Board Act, the Unclaimed Assets Act, the Statutory Instruments Act, and the Housing Act, which were contained in the Finance Bill.

However, the court upheld the 16 per cent VAT on insurance premiums, the digital asset tax, and the tax on betting, saying they were constitutional and within the mandate of the National Assembly.

The judges also found that the National Assembly speaker Moses Wetangula did not have to seek concurrence from the Senate speaker Amason Kingi on the Finance Bill, as it was a money bill.

The court further found that the National Assembly conducted sufficient public participation while enacting the Finance Bill, and dismissed the claims of the petitioners that it was done in a rush and without proper consultation.

The National Assembly has asked the court to freeze the judgment for 45 days to allow it to appeal parts which were declared unconstitutional. The court has not yet ruled on the request.