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High Court declares housing levy lawfully enacted

A Nairobi Magistrate Court has ordered the unconditional release of Savannah Clinker Chairman, Benson Ndeta, citing a High Court directive halting his prosecution and detention. (Photo: EV)

By Joseph Ndunda | Tuesday, October 22, 2024

A three-judge bench determined that public participation in the process was sufficient.

The High Court has found that the 1.5 per cent Affordable Housing levy imposed on workers is constitutional, does not constitute double taxation, is not discriminatory and that proper public participation occurred before its enactment.

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A three-judge bench comprising Justices Olga Sewe, John Chigiti, and Josephine Mong'are found that the petitioners led by veteran litigator and Busia Senator Okiya Omtatah, activist Eliud Matindi and Katiba Institute failed to prove their case.

They had argued that the levy was unconstitutional because no meaningful public participation was conducted before it was enacted and amounted to double taxation but the judges disagreed.

"It is our finding that the levy is properly in place and in accordance with the constitution," Justice Mong'are stated.

The judges emphasised that the National Assembly has the authority to determine how taxes are calculated, imposed, or collected under Article 95 of the constitution.

The judges ruled that Section 4 of the Housing Levy Act is not unconstitutional as argued by the petitioners who sought to have it nullified.

The judges found that there was proper public participation conducted by Parliament before the enactment of the affordable housing levy.

The judges have further found that the levy is not discriminatory as alleged by the petitioners.

On the issue of the 1.5 per cent affordable housing levy, the judges noted that it has been shown that imposition of the tax will not unfairly burden Kenyans as alleged by petitioners.

"It is our finding that the levy is properly in place and in accordance with the constitution," Mong'are stated.

Chingiti stated that the purpose of the act is meant to provide a legal framework for affordable housing programs projects and institutional housing.

"It is therefore our finding the purpose of the act is to promote and uphold the constitutional duty of the state or provide housing with line of a previous decision of the Supreme Court," Chigiti ruled.

"It is our finding sections 3 and 4 of the act are constitutional and are not in any way infringe Article 43(1) of the constitution."

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