It is a major blow to the government after it lost an attempt to have six petitions challenging the Affordable Housing Act, 2024 dismissed.
Justice Chacha Mwita of Milimani High Court on Friday, May 3, 2024, declined to strike out the lawsuits and instead ordered the file of the consolidated petitions be forwarded to Chief Justice Martha Koome to empanel a bench to hear and determine the same as they raise serious constitution issues.
"l am satisfied that the consolidated petitions raise substantial questions of law which warrants certification and referral to the Chief Justice under Article 165 (4) of the constitution for empanelment of an expanded bench," Justice Mwita ruled.
The judge referred the matter to the Head of Judiciary after rejecting a plea by Attorney General Justin Muturi, Cabinet Secretary of Treasury Njuguna Ndung’u, Cabinet Secretary Lands Alice Wahome, Senate and National Assembly to strike out the petitions by Busia Senator Okiya Omtatah, Nakuru doctor Magare Gikenyi and other activists on grounds that the High court lacked jurisdiction to hear and determine the same.
"Having considered the preliminary objections raised in this consolidated petitions, the conclusion l come to, is that the objections are not meritorious. This court has jurisdiction to hear the consolidated given the broad nature of its jurisdiction under Article 165 (3)(d)(i)(ii)," Justice Mwita ruled.
He differed with the CSs Treasury and Lands, AG, National Assembly and Senate averments and found that the consolidated petitions raise important issues, including allegations of violation of constitutional principles and contravention of the constitution.
"There are further allegations that the impugned Act and its provisions violate the constitutional architecture relating to functions assigned to the two levels of government. The issues raised in the petitions are of general national importance and are, substantial questions of law requiring certification," Mwita stated.
The CS lands, CS Treasury and AG had urged Judge Mwita to throw out the petitions on grounds that the court lacks jurisdiction to hear and determine the petition and that lawsuits failed to specifically demonstrate the manner in which they violated the petitioners' constitutional right.
"The petition challenges the Affordable Housing Act 2024 and the Government Financial Management (Kenya Slum Upgrading) low cost of Housing and Infrastructure and management and to public, private and community land and contracts and Environment and Lands Court(ELX) has exclusive jurisdiction to hear and determine the petition," they had argued.
The AG had told the court that petition no181 of 2024 is incompetent having been filed by an unqualified person, this should be struck out for violating sections 31 and 34 of the Advocates Act.
The National Assembly had argued that the jurisdiction of the constitutional court does not extend to matters concerning the constitutional validity of the Affordable Housing Act particularly in regard to issues pertaining to land use and occupation, land title, land title, land administration and management as well as matters concerning public-private and community land and contracts.
The petitioners vehemently opposed the preliminary objections raised by the government arguing that the same lack no basis as the constitutional court has the requisite jurisdiction to hear and determine their lawsuits.
They also contended that the petitioners have not demonstrated the unconstitutionality of the impugned provisions of the Affordable Housing Act since the petition only seeks to restrict the legislative authority of Parliament.
The lawsuit by Gikenyi, Pauline Kinyanjui and three others contends that the Act should be declared illegal since it is discriminatory as it has barred corporations from owning a house through the affordable housing programme.
“Corporations pay tax and contribute to the economy and as such, barring players from the sector from owning a house was discriminatory, “ the petitioners state in their court papers.
They contend that the Act threatens the freedom to own property by proposing to compel civil servants to participate in a mandatory savings scheme disguised as a means to facilitate property acquisition.
In their view, parts of the Act ignore the role of the Kenya Revenue Authority (KRA) in the collection of taxes.
They accuse the State of avoiding its obligations and instead obligating ordinary citizens to undertake the functions of the state.
The recent lawsuit by the five petitioners was lodged after President Ruto assented to the Affordable Housing Bill which was passed by Parliament earlier this year.
