State in a spot over appeal on housing levy

Casual labourers walk past Mukuru's affordable housing project on October 3, 2022. [Denish Ochieng, Standard]

Kenya Kwanza administration was yesterday hard-pressed to explain why it was keen on pursuing its appeal against the High Court judgement on the housing levy despite enacting a new law.

National Assembly lawyer George Murugara on one hand told Court of Appeal judges Kathurima M’inoti, Agnes Murgor and John Mativo that the move by President William Ruto's government was out of caution.

Ruto had told the public he had decided to go back to the drawing board to comply with the High Court judgement by justices David Majanja, Christine Meoli and Lawrence Mugambi.

However, the argument by Murugara revealed that Kenya Kwanza was hellbent on continuing to collect the controversial levy that it opted to do a new law instead of waiting for the Court of Appeal to hear and determine the appeals on the old law.

That court had declined to allow the government to continue collecting the levy as it waited for the case to be settled.

Murugara was answering a question by Justice Mativo, who asked whether the new housing levy law had rendered the appeal moot.

Attorney General Justin Muturi took a similar stand on the second law assented in March this year. However, the AG argued that there were still ripe issues on the appeal that needed clarity from the court.

AG’s representatives Prof Githu Muigai, Mahat Somane and Kiragu Kimani argued that the High Court erred in making adverse findings over the Finance Act, 2023, enactment process. 

The AG argued that Kenya Kwanza went for those who are salaried first and would later get those who are in the informal sector onboard.

But Azimio la Umoja One Kenya Coalition took a divergent view. The Opposition argued that the appeals by the National Assembly and the AG had collapsed as the latter had complied with the orders of the High Court. 

Azimio lawyer Ochieng Oginga said the government was engaging the court in an academic exercise. He said that this was a dangerous precedent as parties could engage the court in endless cases while they have complied with the orders.

Busia Senator Okiya Omtatah, Katiba Institute and Dr Fred Ogola on the other hand urged the judges to find that failure to subject amendments done on the floor of the House without public participation was illegal.

Okiya insisted that the entire Finance Act was unconstitutional as there were no budget estimates that had been presented before Parliament for approval.

Dr Ogola said MPs illegally introduced new sections in Act on the floor of the House.