On Friday, 26th, January, 2024, the court of Appeal declined to suspend a previous ruling by the High Court which declared the Housing Levy Unconstitutional. The government, through its legal representatives had appealed the high court ruling, hoping that they would be allowed to keep collecting the levy.
Further, the three-judge bench comprising of judges Lydia Achode, John Mativo and Paul Gachoka, lifted the stay orders granted on 28th November last year by the High Court. After the levy was declared unconstitutional, the government had requested for “stay” orders which would allow them to keep collecting levy remittances awaiting today’s decision by the court of appeal.
The High Court judges granted this request, giving the government a 45-day grace period which was to end on 11th January but was extended to 26th January. Contrary to their expectations, the appellate court judges lifted the stay order, which means the government cannot collect the levy anymore. The reasons given for this ruling include, public interest and the legal dilemma posed by the levy.
“In our view, public interest lies in awaiting the determination of the appeal. This is because if the stay sought is granted at this stage, should the appellate Court affirm the impugned decision, then some far-reaching decisions that will have been undertaken pursuant to the impugned laws may not be reversible,” said the judges.
High Court Declares Housing Levy Unconstitutional (read previous article)
During the application for the stay orders last year, the government representatives had cautioned that stopping collections immediately would have serious repercussions. They also said that the government had already entered into contracts regarding the Affordable Housing Program and if they were to stop collecting the levy, they risked being sued by other parties involved in those contracts. During the court of appeal hearing today, it was noted that none of those contracts had been submitted as evidence yet.
Meanwhile, in December, 2023, after the High Court ruling that declared the levy unconstitutional, the government introduced the Affordable Housing Bill in an effort to build a proper legal framework for both the Housing Levy and other components in the Affordable Housing Program. On December, 9th, 2024, the National Assembly Departmental Committees on Housing and Finance, published a public participation notice in the local newspapers, inviting the public and stakeholders to submit memoranda on the Bill.
The notice, prompted litigants from a Kisumu-Based lobby group to move to court, citing that the notice deadline was too short, considering the importance of the Bill. The High Court in Kisumu issued conservatory orders which stopped public participation from taking place.
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