Why court has rejected governments' affidavit in housing levy case

Housing Principal Secretary Charles Hinga sought to introduce a new affidavit. [File, Standard]

The Court of Appeal on Monday dismissed an application seeking to introduce a new affidavit by Housing Principal Secretary Charles Hinga in support of the government’s case for the continuation of Housing Levy deductions.

In the affidavit, Hinga claimed that the affordable housing project had been scaled up, enjoyed public support, and that some Kenyans had already received houses.

He argued that it would be impossible to reverse the project despite the High Court’s finding that the law permitting levy deductions solely from salaried persons was unfair.

However, Court of Appeal judges Wanjiru Karanja, Aggrey Muchelule, Weldon Korir, George Odunga and Patrick Kiage rejected the application to admit the new document.

Nakuru-based surgeon Gikenyi Magare argued that Hinga’s affidavit amounted to introducing irrelevant information in an attempt by the government to fill gaps in its case.

Magare described the project as a Ponzi scheme, arguing that those who pay into it are not the beneficiaries. He said that although Kenya is a capitalist country, the government had anchored the project on socialism.

According to him, labour laws and the Constitution treat salary as property, which cannot be taken away without justification.

“This is a Ponzi scheme where people pay while others get the houses. Under the housing levy, one person is deducted from while another receives a house. Employee X suffers while person Y benefits. It is worse because it is mandatory,” he said.

He added: “This has been disguised as a compulsory savings scheme, yet the Constitution allows individuals to make their own choices. A salary is property because it has been earned and cannot be arbitrarily deprived.”

Magare argued that it was unfair for a person to purchase a house but be barred from selling it. He said the board had no role after ownership and that it was illegal to use public land for private development.

Supporting Magare’s opposition to the application, lawyer Bernhard Ng’etich argued that the affidavit sought to urge the Judiciary to overlook legal shortcomings for political expediency.

“Court of Appeal rules should not be used to plug gaps in an appeal. What the Principal Secretary’s affidavit suggests is that the Act has already been implemented and that the Judiciary should turn a blind eye and allow the project to continue,” Ng’etich said.

He argued that the project was political, noting that the law and its implementation were vague. He added that the Act targeted only salaried persons and that its linkage to Article 31 of the Constitution was merely cosmetic.

“This Act was not meant to provide houses to anyone. Let the money be refunded; it was an experiment on Kenyans,” he said.

Katiba Institute submitted that there were no proper oversight mechanisms for the Affordable Housing Board. Its lawyers, Dr Paul Gichana, Ray Odanga and Joshua Malidzo, argued that the board reported only to the Cabinet Secretary despite using public land and resources.

The court heard that the board performs functions similar to those of the National Housing Corporation.

“You are forced to pay for a house through a tax, and when you want one, you are again required to buy it. This means that only those with means will benefit,” Malidzo said.

On the other hand, Githu Muigai, Kiragu Kimani, Mahat Somane and Deputy Solicitor General Charles Mutinda argued that the government’s actions were guided by a Supreme Court judgment affirming the right to housing.

They said it was clear that the government intended to actualise a constitutional right. Kiragu warned that halting the project would disrupt allocations and destabilise families already occupying the houses.