Gikenyi B & 5 others v Cabinet Secretary for Lands, Public Works, Housing and Urban Development & 65 others
The bottom line
#Kenya's Court of Appeal has upheld the Affordable Housing Act and the 1.5% housing levy, confirming employers and workers must keep contributing.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application by the 1st to 3rd respondents to adduce further affidavit evidence should be admitted (reasons reserved and given in the judgment)
- 2.Whether the Act infringed Articles 40 and 43 of the Constitution
- 3.Whether the Act, as enacted, amounted to a claw back on devolution
- 4.Whether the Act violated the Petitioners' rights under Article 27 of the Constitution
- 5.Whether the use of public land for the development of affordable houses infringed on the functions of the National Land Commission
- 6.Whether there was adequate public participation in the process leading to the enactment of the Act
- 7.Whether the Act passes the test of clarity and certainty
- 8.Whether section 60 of the Act was unconstitutional for retrospectivity
- 9.Whether the Act was unconstitutional for failure by the Commission on Revenue Allocation to consider the Bill as per Article 205(1)
- 10.Whether the appointment of the Commissioner General of Kenya Revenue Authority as Collector of the Levy was in accordance with the Constitution
Key legal issues
#Whether the Act infringed Articles 40 and 43 of the Constitution
The Act does not infringe either Article. Taxation authorised by legislation under Articles 209 and 210 is not arbitrary deprivation of property, and the Act is a legitimate legislative measure towards progressive realisation of the right to accessible and adequate housing, though it does not fully cater for the no-income earners.
The Court held that the Constitution itself permits taxation to finance State obligations, and courts will not interrogate the wisdom of fiscal policy. Article 43(1)(b) confers a right of access, not ownership. The Act's allocation criteria (deposit, purchase) lock out the no-income earners, the most deserving group, but the Act is only one measure towards progressive realisation and cannot be struck down merely for incompleteness; more must be done going forward.
Whether the Act amounts to a claw back on devolution
It does not. Housing is a shared function; the Act's framework, including county housing committees and county representation on the Board, promotes complementarity and cooperative governance.
Applying Articles 6(2), 186(1), 187 and the Fourth Schedule, and the Supreme Court's guidance in Senate v Council of Governors and Institute for Social Accountability, the Court held the two levels are distinct but interdependent. The Board's composition includes county and stakeholder nominees; sections 34-40 give counties implementation roles. The Court recommended enhanced county representation but found no constitutional violation.
Whether the Act violated Article 27 (equality and non-discrimination)
No unfair discrimination. The differentiation between formal and informal sector contributors bears a rational connection to the legitimate purpose of providing accessible and affordable housing.
Applying the Hugo/Van Heerden and Hoffmann three-step analysis and local authority (Dida, FIDA-K, Rawal), the Court found mere differentia is not discrimination; the self-assessment system under section 52B of the Income Tax Act covers the informal sector, and implementation may entail affirmative action under Article 27(6).
Whether use of public land for affordable housing infringes the National Land Commission's functions
No infringement established. Section 41 of the Act applies the Land Act, under which allocation of public land requires NLC action; any allocation without NLC approval would be unlawful, but a violation could not be found speculatively.
Article 62 vests administration of public land in the NLC. Section 41(1) of the Act imports the Land Act, whose section 12 requires requests to the NLC before allocation. The Court declined to speculate that unlawful allocations would occur, and noted the NLC participated in the legislative deliberations without contrary input from the petitioners.
Whether there was adequate public participation
There was adequate public participation. Newspaper adverts, stakeholder hearings in 19 counties and written submissions satisfied the reasonableness standard; rejection of majority views does not vitiate the process.
Applying the BAT Case framework and South African authority (New Clicks, Doctors for Life, Merafong, Land Access Movement), the Court held participation must be reasonable, not universal; views expressed are not binding on the legislature; and the TIFA research relied on by the appellants could not be verified as authoritative.
Whether the Act passes the test of clarity and certainty
It does. Sections 4 and 29, though not defining 'gross income', are not so imprecise as to be incapable of meaningful interpretation or guidance.
Relying on Osborne v Canada and Grayned, the Court held vagueness invalidates a law only where it is incapable of meaningful interpretation. The taxable base, rate and timelines are precisely stated, and section 29's data-access power is confined to data necessary for the Administrator's functions.
Whether section 60 of the Act is unconstitutional for retrospectivity
It is not. Parliament's intention to apply the section retrospectively was clear, and the retrospective effect preserves transactions under section 84 of the Finance Act 2023 without impairing contractual obligations or divesting rights.
Applying Samuel K Macharia, Municipality of Mombasa v Nyali and Wilson, the Court held the presumption against retrospectivity is rebutted by express wording or necessary implication. A retroactive law is not unconstitutional unless it impairs obligations, divests rights or is constitutionally forbidden; none was shown.
Whether failure by the CRA to consider the Bill under Article 205(1) rendered the Act unconstitutional
The CRA's input ought to have been sought before parliamentary debate, and the High Court erred in deferring its role to the implementation stage; however, no unconstitutionality was declared because the CRA was never made a party and the petitioners did not prove the assertion.
The Court found the Act envisages financial matters concerning county governments (section 11(3)), triggering Article 205. It respectfully disagreed with the High Court's timing analysis but held the petitioners, bearing the burden of proof, failed to establish the facts since the CRA was not a party and its position was not placed before the Court.
Whether designation of the Commissioner General, KRA as collector of the levy was constitutional
It was. The Kenya Revenue Authority Act designates the Authority as the government's collection agent and vests management of its affairs in the Commissioner General, so the designation cannot be faulted.
The Court agreed with the respondents that section 5 of the KRA Act (as amended) makes the Authority an agent of government for collection of all revenue, and section 11 vests management of funds, property and affairs in the Commissioner General; equating the office with the Authority raises no constitutional conflict.
Application for additional evidence on appeal
Dismissed. The progress and scale of the Affordable Housing Programme are matters of general notoriety that can be judicially noticed and need not be proved by additional evidence.
Applying rule 31(1) of the Court of Appeal Rules, Torino Enterprises, Dorothy Nelima Wafula and Mohamed Abdi Mohamed, the Court held the proposed evidence concerned post-judgment implementation facts irrelevant to the constitutional question, which turns on the constitutionality of the Act, not the programme's stage.
Legal principles established
#- As a binding appellate decision, the Court of Appeal has affirmed that a tax or levy imposed through legislation in accordance with Articles 209 and 210 of the Constitution does not amount to arbitrary deprivation of property under Article 40; courts will not strike down fiscal legislation merely because the tax is considered oppressive or ill-timed.
- The right under Article 43(1)(b) is a right of access to adequate housing, not a right to own a house; legislation enacted under Articles 21(2) and 43(1)(b) must prioritise vulnerable groups but will not be struck down merely for not fully meeting the constitutional expectation.
- Housing is a shared function between the national and county governments; a statutory framework allocating roles to both levels does not claw back on devolution where it respects functional and institutional integrity under Articles 6(2), 186(1) and 189.
- Mere differentiation in treatment does not per se constitute prohibited discrimination; the differentiation must be unreasonable or arbitrary and devoid of rational basis.
- Additional evidence on appeal will not be admitted where the facts sought to be proved are matters of general notoriety capable of judicial notice.
- Allocation of public land for affordable housing must follow the Land Act, under which the National Land Commission's role is paramount; any allocation of public land without NLC approval would be unlawful.
- Where a Bill includes financial matters concerning county governments, the input of the Commission on Revenue Allocation must be sought before the Bill is debated in Parliament, not at the implementation stage.
Court orders
#- 1.The application dated 31st December 2025 seeking leave to file and rely on further affidavit evidence was dismissed
- 2.The consolidated appeals (Civil Appeals E832 of 2024 and E019 of 2025) were dismissed in their entirety
- 3.No order as to costs, taking into account the public interest nature of the litigation
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Nairobi HCCHR Pet. E154 of 2024 as consolidated with PET. No. E173, E176, E181, E191 and E11 all of 2024
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over the High Court's original constitutional jurisdiction (Article 164 of the Constitution; Court of Appeal Rules, 2022)
- Consolidated with
- Civil Appeal E019 of 2025
Relief refused
#Setting aside of the High Court judgment of 22nd October 2024 and declarations that the Affordable Housing Act 2024 (or specified sections) is unconstitutional, null and void ab initio
The Court found no merit in the appeals; the Act is a lawful legislative measure under Articles 21(2), 43(1)(b), 209 and 210 of the Constitution
Quashing of the Affordable Housing Levy at 1.5% and prohibition of its collection by the Commissioner General, KRA
Imposition of tax through legislation in accordance with Articles 209 and 210 is not arbitrary deprivation of property; the designation of the Commissioner General as collector is lawful
Refund of all monies collected under the Act and handover of housing units to county governments
Appeal dismissed; no such relief was granted
Declaration that the Act claws back on devolution and vests county functions in the national government
Housing is a shared function; the Act establishes a framework for cooperative governance consistent with Articles 6(2), 186(1), 187 and the Fourth Schedule
Declaration that the Act discriminates contrary to Article 27
Differentiation between formal and informal sector contributors bears a rational connection to a legitimate government purpose and is not unfair discrimination
Declaration that section 60 of the Act is unconstitutional for retrospectivity
Parliament's intention to apply the provision retrospectively was clear and its effect does not impair contractual obligations or divest rights
Declaration that the Act is void for vagueness/uncertainty (sections 4 and 29)
The impugned terms are not so imprecise as to be incapable of meaningful interpretation or guidance
Declaration that public participation was inadequate
Parliament took reasonable steps including newspaper adverts, stakeholder hearings in 19 counties and written submissions; participation need not involve all 47 counties
Costs
No order as to costs - 'Taking into account the public interest nature of the litigation, we make no order as to the costs.'
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Having considered the submissions made, we find no merit in this appeal which we hereby dismiss. Taking into account the public interest nature of the litigation, we make no order as to the costs.
The imposition of taxes by the government geared towards the fulfilment of its constitutional and statutory obligations cannot therefore be termed as a deprivation of property.
It is important to restate that the right articulated in in the Constitution is the right of every person to accessible and adequate housing, and to reasonable standards of sanitation. It is not the right to own a house.
we reach the conclusion that the Act does not claw back on devolution but establishes a framework for cooperative governance between the two levels of government in addressing the constitutional right to housing.
Mere differentia or inequality of treatment does not per se amount to discrimination within the inhibition of the equal protection clause.
Any allocation of public land without the approval of the NLC will, accordingly, be unlawful.
Considering the steps taken by Parliament, we are not satisfied that there was no adequate public participation in the process leading to the enactment of the Act.
We are not satisfied that sections 4 and 29 of the Act are worded in a manner that can be termed as so imprecise as to be incapable of any meaningful interpretation or guidance.
A fact that can be taken judicial notice of, in our view, need not be brought by way of additional evidence particularly on the day when the appeal is listed for hearing.
the learned Judges seemed to have imported an interpretation that went contrary to the express stipulations in Article 205 of the Constitution which requires that the input of the CRA be sought before the Bill is discussed in Parliament and not at the stage of its implementation.
It must be appreciated that the accrual of the right to housing is not a progressive. It is a right that has accrued. It is only its realisation that may be progressive.
Issues in the judgment
#Respondent list contains duplicates: Kenya National Union of Nurses appears as both 62nd and 65th respondent; Kenya Union of Clinical Officers as both 63rd and 66th respondent.
Typographical errors in the judgment, including 'E221 od 2023' and '20016 ZAACC 22' for the Land Access Movement citation.
Appellants' prayers refer to 'Affordable Housing Act (Chapter 117, Laws of Kenya)' and 'Act No. 75 2024' inconsistently with the Act's correct citation as No. 2 of 2024.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gikenyi B & 5 others v Cabinet Secretary for Lands, Public Works, Housing and Urban Development & 65 others", Case Analysis (2026). Civil Appeal E832 of 2024 (consolidated with Civil Appeal E019 of 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1821/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.