Kenyans to continue paying housing levy

Lawyer Githu Muigai makes submissions at the Supreme Court in September 2022. [Samson Wire, Standard]

All salaried Kenyans will continue to pay housing levy until January 26, 2024, the Court of Appeal has ordered.

The appellate court extended the High Court order of November 28, 2023, that would see salaried Kenyans continue paying housing levy until end of January.

Judges Lydia Achode, John Mativo and Mwaniki Gachoka directed that a status quo on the high court stay order be maintained until January 26, when the court will give further directions.

On the same day, the court is also expected to decide whether to suspend a declaration by the high court that the housing levy was unconstitutional or not.

The court’s decision means Kenyans will have to wait until an appeal by the government is heard and determined before knowing whether the levy will be retained or not.

“The ruling of an appeal by the government will be delivered on January 26. In the meantime, the status quo obtaining as of today shall be maintained until the delivery of the ruling,” the judges jointly ordered.

The directions followed a plea by the government’s lawyer Githu Muigai for the judges to extend the order, which was set to expire on January 10.

Stay order

On November 28 last year, High Court judges David Majanja, Lawrence Mugambi and Christine Meoli ruled that the housing levy was unconstitutional, which the government is now appealing.

However, the same judges ordered that the housing levy remain in force for 45 days until January 10, pending the appeal.

The stay order by the High Court has been challenged by Busia Senator Okiya Omtatah before the appellate court. The same will be ruled on together with the government’s application on January 26.

Omtatah submits that the high court judges had no jurisdiction to suspend the implementation of its declaration that the housing levy was unconstitutional.

“The High Court had no authority to suspend its own decision,” deposes Omtatah.

Law Society of Kenya (LSK), Kenya Human Rights Commission (KHRC), Katiba Institute, the International Commission of Jurists and the Institute for Social Accountability also challenge the stay order.

“The 45-day stay order controversially issued to allow the collection of housing levy should be abolished,” submits LSK President Eric Theuri.

The Treasury, National Planning Cabinet Secretary, Attorney General, Speakers of the National Assembly and Senate and the KRA want the appellate court to quash high court ruling that the levy is unconstitutional.

They say that if the levy is removed contracts for workers in affordable housing programmes will be terminated.