Speaker Wetang’ula to appeal Housing Levy ruling

National Assembly Speaker Moses Wetang’ula intends to appeal the decision by a three-judge bench that ruled against the Housing Levy that was introduced by President William Ruto in July.

The bench consisting of Justices David Majanja, Christine Meoli and Lawrence Mugambi had on Tuesday, November 28, ruled that the Housing Levy and some other sections of the Finance Act,2023, were unconstitutional, null and void.

In a notice of appeal, Wetang’ula says that the National Assembly was dissatisfied with the court’s judgement and that it would appeal the court’s decision.

In the 8-page document, the Speaker said that the House would move to the appellate court because the matter was of immense public interest.

“Take notice that the National Assembly and the Speaker of the National Assembly, the 3rd and 4th respondents, being dissatisfied with part of the judgment of the High Court (Hon. Justice Majanja, Lady Justice Meoli and Hon. Justice Mugambi) delivered at Nairobi on November 28, 2023, intends to appeal to the Court of Appeal against part of the decision,” the appeal notice sent to Busia Senator Okiya Omtatah reads.

According to Wetang’ula, he wants to appeal the court decision that Sections 76 to 78 of the Finance Act amending Section 7 of the Roads Board Act, Section 87 amending Section 28 of the Unclaimed Assets Act, 88 and 89 of the Finance Act, 2023 repealing Section 29 of the Statutory Instruments Act, No. 23 of 2013, are unconstitutional and void.

Further, the Speaker seeks to challenge the High Court declaration that found that the introduction of the housing levy amendment to Section 84 of the Finance Act violated several articles of the Constitution including Article 10, 201 of the Constitution.

Article 10 deals with the national values and principles of governance while Article 201 outlines the principles of public finance.

In addition, the National Assembly also intends to appeal the judge’s decision to issue an order prohibiting Treasury and KRA from collecting, charging or otherwise, the charge known as affordable Housing Levy on the basis of Section 84 of the Finance Act, 2023.

“We intend to appeal to the Court of Appeal to the extent that the court found that it is necessary for the Speaker of the National Assembly to agree with the Speaker of the Senate on the nature of any Bill prior to its introduction in any House,” the notice adds.

The move by the National Assembly to appeal the ruling on the Finance Act at the Court of Appeal comes after the High Court granted stay orders on the implementation of the judgement that rendered some sections of the law including the Housing Levy unconstitutional until January 10, 2024.

The suspension of the judgement of the court came when the National Assembly lawyer asked the court to suspend its decision declaring the Housing Levy unconstitutional for 45 days to allow them to come up with a way forward.

Lawyer George Murugara, who represented the National Assembly, sought the 45-day window to regularise the Housing Levy by taking it to Parliament and subsequently passing it into law.

“I confirm that we are aggrieved by the findings of the Kenya Roads Board section 76 and 78, the Unclaimed Assets Act, the Statutory Instruments Act and the regulations there under which possibly are in force today but may expire if that order is enforced some of which are on Revenue raising measures and Section 84 of the Finance Act 2023 in which the housing levy has been declared unconstitutional,” the lawyer stated.

While seeking for the stay orders Murugara stated that there would be heavy implications should the judges decline the plea.

Lawyer Ochieng Gaya representing KRA sought a stay in regard to the Housing Fund.

“We are all aware KRA is collecting pay together with the housing and that system adjustment requires time to be adjusted,” Gaya stated.

Petitioners led by Busia Senato Omtatah and Azimio la Umoja – One Kenya coalition, however, argued that the government should refund the money it had acquired illegally.

The High Court judges had quashed some sections of the Finance Act 2023, declaring them unconstitutional. One of the provisions in the Act includes the Housing Levy, with the judges explaining that it contravenes the Constitution.

“The levy against persons in formal employment to the exclusion of other non-formal income earners without justification is discriminatory, irrational, arbitrary and against the Constitution,” Justice Majanja ruled.