The Court of Appeal has allowed the government to continue to collect housing levy until January 26, 2024 when it will finally rule on the matter thus giving president William Ruto an initial win amid ongoing onslaught against the Judiciary by the Executive wing of government.
A Bench of three judges of the appellate court directed the status quo prevailing to be maintained until then, when they will rule on the application by Attorney General Justin Muturi seeking further collection of the levy, pending the determination of an appeal on the legality of the levy.
The three-judge bench Lydia Achode, John Mativo and Mwaniki Gachoka ordered that status quo be maintained until a ruling is made on whether the government can continue collecting the levy pending the determination of an appeal challenging its legality.
The High Court quashed the levy on November 28 for being discriminatory but suspended the judgment until January 10, to allow the government to pursue an appeal.
“Upon hearing the parties, all the applications are consolidated as they arise from the same judgement of the High Court dated November 28, 2023. Civil Application No. E577/2023 is designated as the lead file.
The ruling on these consolidated applications will be delivered on January 26, 2024.”
“In the meantime, the status quo obtaining as of today shall be maintained until the delivery of the ruling.”
The housing levy was declared unconstitutional by the High Court last year, but the orders were stayed until January 10, 2024.
The ruling is a win for the government which had persuaded the court to consider quashing the oral submissions from Applicants and respondents on the controversial housing levy.
“In the meantime, the status quo obtaining as of today shall be maintained until the delivery of the ruling.” Justices Achode, Mativo and Gachoka said.
A day before the hearing of the application, president Ruto complained that his plans were being sabotaged through court orders. He vowed to disobey the orders and implement the projects.
Another application, seeking to lift an order blocking the implementation of the Social Insurance Act, 2023 was also slated for hearing at the Court of Appeal on the same day but it was pushed to another date, because of lack of time.
Muturi had pleaded with the court to allow the collection of the levy arguing that it had created more than 120,000 jobs since it was started six months ago.
While quashing the levy, High Court judges David Majanja, Christine Meoli and Lawrence Mugambi stated that imposing it against persons in formal employment to the exclusion of other non-formal income earners, to support the national housing policy was without justification, unfair, discriminatory and irrational.
Kenya has about 3.2 million people in formal employment and about 15.9 in the informal sector and the court observed that it was illegal to subject a section of the population to the tax leaving out the rest.
“The introduction of the Housing Levy through amendment of the Employment Act by Section 84 of the Finance Act, 2023 lacks a comprehensive legal framework in violation of Articles 10, 201, 206 and 210 of the Constitution.” The High Court judges ruled.