Court deals another blow to plan on affordable housing

A section of apartments and office blocks in Westlands on 18th February 2017. [PHOTO:WILBERFORCE OKWIRI]
The Government’s plan of putting up 500,000 affordable houses has suffered a fresh blow from the courts.

The Employment and Labour Relations Court on Wednesday suspended the formation of an advisory board to run and manage the housing fund. This could further delay the ambitious project that is one of the pillars of President Uhuru Kenyatta’s Big Four agenda.

The project, which was scheduled to begin in June last year, was initially delayed by what State officials said was the complex planning and logistics arrangements.

It ran into headwinds last month when the Employment and Labour Relations Court temporarily suspended the implementation of the 1.5 per cent housing tax for salaried workers, arguing that it was unconstiutional and amounted to double taxation. The directive that took effect until January 21 followed an application by the Central Organisation of Trade Unions (Cotu).

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The Federation of Kenya Employers (FKE) went to court on Tuesday to challenge the decision by the Minister for Transport, Infrastructure, Public Works, Housing and Urban Development, James Macharia, to seek nominees to the yet-to-be-established advisory board.

Justice Nelson Abuodha in his ruling barred the CS and the National Housing Corporation from nominating members to the advisory board until the matter was heard and determined.

“That in the interim an injunction order be and is hereby issued restraining the minister for Transport and the National Housing Corporation, their agents, servants, representatives or any persons claiming to act through them from proceeding with any actions and process aimed at appointing members of an advisory board and-or establishing an advisory board,” said Justice Abuodha.

The CS had sought to nominate members to the advisory board through a media advertisement on December 24 last year.

The ministry invited three nominees from each of the organisations listed - Cotu, Kenya National Union of Teachers, FKE, Union of Kenya Civil Servants and the Kenya Private Sector Alliance. “That the application be and is hereby certified as urgent and should be served on the respondents for inter partes hearing on January 24, 2018, before the judge,” said Justice Abuodha. FKE in its application had argued that there was no public participation on the formation of the board by the ministry and that the Housing Act did not give the minister the mandate to establish an advisory board.

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Public participation

“The establishment of an advisory board and the call for nominations of advisory board members contravenes the provisions of section 6 of the Housing Act which provides that the Housing Fund is under the control of the National Housing Corporation,” said Jacqueline Mugo, the executive director and chief executive of FKE, in an affidavit filed on Tuesday. She argued that the action was illegal as it was done outside the law and without any public participation.

Mrs Mugo further argued that the High Court had on December 19 temporarily suspended the 1.5 per cent National Housing Development Fund following an application by Cotu Secretary General Francis Atwoli, whose order was still in force.

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GovernmentEmployment and Labour Relations CourtPresident Uhuru KenyattaBig Four agendaFederation of Kenya Employers