Gikenyi B & 5 others v Cabinet Secretary for Lands, Public Works, Housing and Urban Development & 65 others

THE NATIONAL HOUSING CORPORATION ....................... 9TH RESPONDENT THE KENYA SLUM UPGRADING, LOW-COST HOUSING AND INFRASTRUCTURE TRUST FUND ...................................... 10TH RESPONDENT THE COMMISSION ON REVENUE ALLOCATION ............. 11TH RESPONDENT THE CONTROLLER OF BUDGET .......................................... 12TH RESPONDENT THE AUDITOR GENERAL ....................................................... 13TH RESPONDENT THE NATIONAL LAND COMMISSION ................................ 14TH RESPONDENT THE COUNCIL OF GOVERNORS .......................................... 15TH RESPONDENT MOSES NTHURIMA .................................................................. 16TH RESPONDENT CONSUMER FEDERATION OF KENYA ................................ 17TH RESPONDENT SENATOR OKIYA OMTATAH OKOITI, MP .......................... 18TH RESPONDENT TRADE UNION CONGRESS OF KENYA ............................... 19TH RESPONDENT SENATOR STEWART MADZAYO, MP ................................... 20TH RESPONDENT SENATOR ENOCH KIIO WAMBUA, MP ................................ 21ST RESPONDENT SENATOR LEDAMA OLE KINA, MP ...................................... 22ND RESPONDENT SENATOR EDWIN SIFUNA, MP ............................................. 23RD RESPONDENT SENATOR OKONG’O OMOGENI (SC), MP ........................... 24TH RESPONDENT SENATOR KAJWANG MOSES OTIENO, MP ........................ 25TH RESPONDENT SENATOR GODFREY OSOTSI, MP ......................................... 26TH RESPONDENT SENATOR MOHAMED FAKI MWINYIHAJI, MP ................ 27TH RESPONDENT SENATOR JOHNES MWARUMA, MP .................................... 28TH RESPONDENT SENATOR CRYSTAL ASIGE, MP ............................................. 29TH RESPONDENT SENATOR DAN MAANZO, MP ............................................... 30TH RESPONDENT SENATOR AGNES KAVINDU MUTHAMA, MP ................... 31ST RESPONDENT SENATOR DR. OBURU ODINGA, MP ................................... 32ND RESPONDENT SENATOR RICHARD ONYONKA, MP .................................. 33RD RESPONDENT SENATOR BEATRICE A. OYOMO, MP .................................. 34TH RESPONDENT SENATOR CATHERINE MUYEKA MUMMA, MP ............... 35TH RESPONDENT SENATOR HAMIDA KIBWANA, MP ...................................... 36TH RESPONDENT SENATOR HEZENA LAMALETIAN, MP ............................... 37TH RESPONDENT SENATOR DR. BETH KALUNDA SYENGO, MP .................. 38TH RESPONDENT SENATOR SHAKILA ABDALLA MOHAMED, MP ............... 39TH RESPONDENT https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1821/eng@2026-09-25 2

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SENATOR EDDY GICHERU OKETCH, MP .......................... 40TH RESPONDENT ELIUD KARANJA MATINDI .................................................... 41ST RESPONDENT BENSON ODIWUOR OTIENO ................................................ 42ND RESPONDENT BLAIR ANGIMA OIGORO ....................................................... 43RD RESPONDENT VICTOR OKUNA ....................................................................... 44TH RESPONDENT FLORENCE KANYUA LICHORO ........................................... 45TH RESPONDENT JUMA JOHN ISAAC ................................................................... 46TH RESPONDENT HON. ALFRED KIPTOO KETER ............................................ 47TH RESPONDENT KENYA HUMAN RIGHTS COMMISSION ............................ 48TH RESPONDENT KATIBA INSTITUTE ................................................................. 49TH RESPONDENT KELVIN KINYUA ....................................................................... 50TH RESPONDENT ANDREW MWENDWA .............................................................. 51ST RESPONDENT HARON NZOMO ....................................................................... 52ND RESPONDENT LAW SOCIETY OF KENYA ....................................................... 53RD RESPONDENT OPERATION LINDA JAMII ..................................................... 54TH RESPONDENT KITUO CHA SHERIA ................................................................ 55TH RESPONDENT TUNZA MTOTO COALITION ................................................. 56TH RESPONDENT KENYA FEDERATION OF EMPLOYERS ............................... 57TH RESPONDENT KENYA MEDICAL ASSOCIATION ......................................... 58TH RESPONDENT KENYA NATIONAL TEACHERS UNION .............................. 59TH RESPONDENT KENYA UNION OF POST-PRIMARY EDUCATION TEACHERS .... 60TH RESPONDENT KENYA MEDICAL PRACTITIONERS, PHARMACIST AND DENTIST UNION .......................................................................................... 61ST RESPONDENT KENYA NATIONAL UNION OF NURSES ............................. 62ND RESPONDENT KENYA UNION OF CLINICAL OFFICERS ............................ 63RD RESPONDENT KENYA MEDICAL PRACTITIONERS, PHARMACISTS AND DENTISTS UNION .......................................................................................... 64TH RESPONDENT KENYA NATIONAL UNION OF NURSES ............................. 65TH RESPONDENT KENYA UNION OF CLINICAL OFFICERS ............................ 66TH RESPONDENT (Being an Appeal arising from the Judgement and Decree of the High Court of Kenya at Nairobi (O. Sewe, J. Mong’are and J. Chigiti SC, JJ.) dated 22nd October 2024 in Nairobi HCCHR PET. E154 of 2024 as consolidated with PET. No. E173, E176, E181, E191 and E11 all of 2024) https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1821/eng@2026-09-25 3

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JUDGMENT 1. When these consolidated appeals came up before us for hearing on 19th January 2026, our attention was drawn to an application dated 31st December 2025. The said application was brought by the 1st, 2nd and 3rd respondents who sought leave to le and rely on further adavit evidence detailing the progress, scale and current implementation status of the Aordable Housing Act (the Act) and the Aordable Housing Programme (the Programme). It further sought that the further adavit evidence be deemed as properly led and be admitted as part of the record of this appeal. 2. The application, as urged by Mr Kimani Kiragu, SC, was expressed to be brought pursuant to Articles 50, 159(2)(d) of the Constitution, Rules 30(1)(b), 31(2) and 44 of the Court of Appeal Rules, 2022 and was premised on grounds: that subsequent to the High Court’s decision, credible and veriable evidence had emerged which did not exist at the time of the impugned judgment; that this evidence is directly relevant to the issues arising in the appeals and is likely to materially aect the Court’s assessment of the reliefs sought, including the prayer to declare the Act unconstitutional; that the housing projects undertaken pursuant to the Act are themselves the subject of the challenge to the validity of the Aordable Housing Levy (the Levy) and constitute post-judgment facts which, by their very nature, could not have been introduced in evidence before the High Court; that the admission of the proposed evidence will assist the Court in determining whether the Levy constitutes a lawful scal measure applied for its intended statutory purpose or an unconstitutional exaction, thereby enabling a principled and evidence-based resolution of the constitutional issues raised; and that no prejudice would be occasioned to the appellants by the admission of the further evidence, as the matters sought to be introduced concern post-judgment developments and have already been brought to the attention of the appellants in the respondents’ submissions thereby aording them adequate notice of the factual context in issue. 3. It was further contended: that the proposed further evidence related to matters of general notoriety and public record, including completed housing units, allocations to beneciaries, nationwide construction activity, employment creation and institutional participation by county governments; that the evidence was directly relevant to key appeal issues like whether the appeal is overtaken by events; that there were practicality and public interest implications of the sought reliefs, such as potential nancial losses, litigation risks and harm to vulnerable groups (e.g., low-income families, artisans and counties); and that it was in the interests of justice, eective administration of justice and the substantive determination of the appeal that the Court be fully apprised of the Programme’s current status, scale and embeddedness in Kenya's social and economic fabric. 4. The application was opposed by Dr Gikenyi, the 1st appellant on behalf of the 1st to the 5th appellants who submitted that the evidence intended to be adduced was not going to aect the outcome of the appeal since the constitutionality of the Act is not dependent on the stage at which the programme has reached. Accordingly, the evidence intended to be adduced was not relevant and was only intended to delay the determination of the appeals. 5. On behalf of the 6th appellant, Mr Kipkoech Ngetich, in opposing the application, submitted that the new evidence ought not to be adduced for the purposes of lling in the gaps or creating a new case in the appeal. It was his view that what was intended to be achieved by the new evidence was to show that the Act had been implemented and hence the Court should ignore the law. In his view, that is not the intention of adducing new evidence. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1821/eng@2026-09-25 4

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6. Mr Malidzo, appearing for the 48th and 49th respondents contended that a party intending to adduce new evidence ought to show its impact on the verdict. In this case, he submitted, what was in contention was the constitutionality of the Act and that the question of mootness was not before the trial court. 7. We dismissed the application and reserved our reasons to be given in this judgement which we hereby proceed to do. The power to re- appraise evidence and to take additional evidence is provided for under rule 31(1) of the Rules of this Court (2022) which provides inter alia: 31(1) On an appeal from a decision of a superior court acting in the exercise of its original jurisdiction, the Court shall have power— a. ….; and b. 8. This Court, in an application similar to the instant one (made under rule 29(1) (b) of the 2010 Rules) in Attorney General v Torino Enterprises Limited [2019] eKLR stated thus: “ 13. 9. in its discretion and for sucient reason, to take additional evidence or direct that additional evidence be taken by the trial court. In Dorothy Nelima Wafula vs. Hellen Nekesa Nielsen & Paul Fredrick Nelson [2017] eKLR, it was expressed that under Rule 29 (1) (b), additional evidence will be introduced on appeal in the discretion of the Court, “for sucient reason”. Though what constitutes ‘sucient reason’ is not explained in the rule, through judicial practice the Court has developed guidelines to be satised before it can exercise its discretion in favour of a party seeking to present additional evidence on appeal. Before this Court can permit additional evidence under rule 29, it must be shown, one, that such evidence could not have been obtained by reasonable diligence before and during the hearing; two, the new evidence would probably have had an important inuence on the result of the case if it was available at the time of the trial, and nally, that the evidence sought to be adduced is credible, though it need not be incontrovertible.” Similarly, in Mohamed Abdi Mohamed v Ahmed Abdullahi Mohamed & 3 others [2018] eKLR, the Supreme Court laid out guidelines on admission of additional evidence before appellate courts in Kenya as follows: “ (79) Taking into account the practice of various jurisdictions outlined above, which are of persuasive value, the elaborate submissions by Counsel, our own experience in electoral litigation disputes and the law, we conclude that we can, in exceptional circumstances and on a case-by-case basis exercise our discretion and call for and allow additional evidence to be adduced before us. We therefore lay down the governing principles on allowing additional evidence in appellate courts in Kenya as follows: a. The additional evidence must be directly relevant to the matter before the Court and be in the interest of Justice; https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1821/eng@2026-09-25 5

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(80) 10. b. It must be such that, if given, it would inuence or impact upon the result of the verdict, although it need not be decisive; c. It is shown that it could not have been obtained with reasonable diligence for use at the trial, was within the knowledge of, or could not have been produced at the time of the suit or Petition by the party seeking to adduce the additional evidence; d. Where the additional evidence sought to be adduced removes any vagueness or doubt over the case and has direct bearing on the main issue in the suit; e. The evidence must be credible in the sense that it is capable of belief; f. The additional evidence must not be so voluminous making it dicult or impossible for the other party to respond eectively; g. Whether a party would reasonably have been aware of and procured the further evidence in the course of trial is an essential consideration to ensure fairness and due process; h. Whether the additional evidence discloses a strong prima facie case of willful deception of the Court; i. The Court must be satised that the additional evidence is not utilized for the purpose of removing lacunae and ling gaps in evidence. The Court must nd the further evidence needful; j. A party who has been unsuccessful at the trial must not seek to adduce additional evidence to make a fresh case on appeal, ll up the omissions or patch up the weak points in his/her case. k. The Court will consider the proportionality and prejudice of allowing the additional evidence. This requires the Court to assess the balance between the signicance of the additional evidence, on the one hand and the need for the swift conduct of litigation together with any prejudice that might arise from the additional evidence on the other. We must stress here that this Court even with the application of the above stated principles will only allow additional evidence on a case-by-case basis and even then, sparingly, with abundant caution.” We agree with the appellants and the 48th and 49th respondents that what was in contention before the High Court was the constitutionality of the Aordable Housing Act. The new evidence that the applicants sought to adduce was with respect to the stage at which the programme had reached in terms of constructions. In our view the level at which the Aordable Housing Programme had reached needed not to be brought by way of additional evidence as it is a matter that can be taken judicial notice of. 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. It was on that basis that we dismissed the application. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1821/eng@2026-09-25 6

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11. This judgment is in respect of two consolidated appeals being Nairobi Court of Appeal Civil Appeals Nos. E832 of 2024 and E019 of 2025. The former appeal was led by the 1st to the 5th appellants while the latter appeal was led by the 6th appellant. Both appeals were consolidated since they arise from the same judgement. 12. Article 21(1) and (2) of the Constitution of Kenya, 2010 (the Constitution) provides that: 1) It is a fundamental duty of the State and every State organ to observe, respect, protect, promote and full the rights and fundamental freedoms in the Bill of Rights. 2) The State shall take legislative, policy and other measures, including the setting of standards, to achieve the progressive realisation of the rights guaranteed under Article 43. 13. Of relevance to this dispute is the right guaranteed under Article 43(1)(b) of the Constitution which provides that every person has the right to accessible and adequate housing, and to reasonable standards of sanitation. Pursuant to the State obligation imposed by Article 21(2) aforesaid, Parliament enacted the Aordable Housing Act No. 2 of 2024 (the Act) which was assented to by the President on 19th March 2024. Its stated objective was to give eect to Article 43(1)(b) of the Constitution; to provide a framework for development and access to aordable housing and institutional housing; and for connected purposes. 14. The enactment of the said Act was met with immediate hostile reception as six petitions were led challenging its constitutionality. These petitions were Petition Nos. E154 of 2024, E173 of 2024, E176 of 2024, E181 of 2024, E191 of 2024 and 11 of 2024 which were consolidated, with Petition No. E154 of 2024 being the lead le. From all the petitions, the High Court eshed out three broad issues for determination, to wit: a) Whether or not the court had the requisite jurisdiction to hear and determine the consolidated petitions; b) The constitutionality or otherwise of the Aordable Housing Act 2024; and c) Who should bear the costs. 15. On the issue of jurisdiction, the court found the respondents’ objections to the jurisdiction of the Court unmerited. We need not say more on the nding since this appeal is not concerned with that nding. 16. On the question of unconstitutionality of the Act, the learned Judges traced its “pre-natal” background to Finance Act, 2023. By that Act various provisions of the Employment Act were sought to be amended and in section 84 of the Finance Act, 2023, it was sought to introduce aordable housing levy. The levy was meant to provide funds for the development of aordable housing and associated social and physical infrastructure as well as the provision of aordable home nancing to Kenyans. When challenge was taken to the constitutionality of that amendment, the High Court, by its decision in Okoiti & 6 others v Cabinet Secretary for the National Treasury and Planning & 3 others; Commissioner-General, Kenya Revenue Authority & 3 others (Interested Parties) [2023] KEHC 25872 (KLR), rendered on 28th November 2023, declared various provisions of the Finance Act 2023, including section 84 of that Act, unconstitutional. In declaring that provision unconstitutional, the court found that the levy was being introduced without a proper statutory framework to govern its imposition and administration contrary to Article 210 of the Constitution. 17. Following that pronouncement, the 4th respondent (the National Assembly) published the Aordable Housing Bill, No. 75 of 2023 (the Bill) vide the Kenya Gazette Supplement No. 236 of 4th December https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1821/eng@2026-09-25 7

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2023 which Bill was processed and passed on the 21st February 2024. It was thereafter forwarded to the Senate on 12th March 2024 and upon being passed by the Senate, was given presidential assent on 19th March 2024. By dint of section 1(a) of the Act sections 4 and 5 thereof became operational immediately. The same day, the President appointed the Chairman of Aordable Housing Board (the Board). The rest of the provisions of the Act were operationalized on 22nd March 2024 vide a Special Issue of the Kenya Gazette Supplement No. 70 of 21st March 2024 by Legal Notice No. 54. By Gazette Notice No. 4495 of 17th April 2024, the Cabinet Secretary, Lands, exercising the powers in section 16 of the Act, appointed members of the Board. It was the operationalization of the Act that precipitated the ling of the consolidated petitions. 18. 19. Appreciating the principle of presumption of constitutionality of statutes, the trial court cited the decisions of the Supreme Court in Samson Gwer & 5 others v Kenya Medical Research Institute & 3 others [2020] eKLR and Wamwere & 5 Others v Attorney General (Petition 26, 34 & 35 of 2019) Consolidated)) [2023] KESC 3 (KLR) (Constitutional and Human Rights) (27 January 2023) as well as the oft-cited decision of the East African Court of Appeal in the case of Ndyanabo v Attorney General [2001] EA 485 for the position that statutes enjoy the presumption of constitutionality and that the onus is on the party challenging that presumption to establish a contrary position. The court then identied the following sub-issues for determination under the broad issue of constitutionality: a) Whether there was adequate public participation. b) Whether the Aordable Housing Act violated the Petitioners’ rights under Articles 27 and 40 of the Constitution. c) Whether the Act infringed Article 43 of the Constitution. d) Whether or not the Act amounted to a claw back on devolution. e) Whether the use of public land for the development of aordable houses infringed on the functions of the National Land Commission. f) Whether the Act was unconstitutional for failure by the CRA to consider the Bill as per Article 205(1); g) Whether section 60 of the Act was unconstitutional for retrospectivity h) Whether the Appointment of the Commissioner General of Kenya Revenue Authority as Collector of the Levy was in accordance with the Constitution. Regarding the issue whether public participation was undertaken, the court, as a preliminary issue, disposed of the question whether the issue was res judicata in light of the determination in Apiyo v Attorney General & 2 others (Petition E013 of 2023) [2024] KEHC 1967 (KLR) (29 February 2024) (Judgment) (the Apiyo Case). The respondents had taken the view that the question of public participation at the National Assembly was res judicata as it was conclusively addressed by the High Court in the Apiyo Case where the court found that public participation in respect to the Bill was compliant with the provisions of the Constitution. That decision having determined the issue of public participation at the National Assembly, it was contended that the same issue could not be raised again in the consolidated petitions. The trial court noted that in the Apiyo Case, the challenge was taken to a notice dated 9th December 2023 issued by the National Assembly in the local dailies that required that public participation be by way of submissions of memoranda for the Bill. The challenge to this mode of public participation was on the ground that marginalized communities of persons living in the slums of Korogocho, Mathare and Kibra were not able to submit memoranda in the manner prescribed in the notice and that the Standing Orders of the National Assembly provided for four dierent methods https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1821/eng@2026-09-25 8

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for public engagement, submission of memoranda being just one of them. Moreover, it was noted in the Apiyo case that the exercise was ongoing and that public hearing was being undertaken during the pendency of the petition. The court in the Apiyo Case concluded that the public participation was eective and constitutionally compliant. 20. However, the consolidated petitions, the trial court noted, raised a broader question on whether adequate public participation was conducted at the National Assembly and Senate within the tenets of Articles 10, 118 and 201 of the Constitution, as opposed to the specic issue touching on the Notice dated 9th December 2023 in the Apiyo Case. Accordingly, the trial court found that the issue of public participation was not res judicata. 21. Citing various authorities, both local and foreign, the trial court appreciated that public participation is essential to the legislative and policy functions of government, both at the National and County levels and is integral to the legislative enactment process since, under Article 10(2) (a) of the Constitution, it is one of the national values and principles of governance. However, it pointed out, public participation does not necessarily mean that everyone must express their opinions, but that instead, there should be tangible evidence of a purposeful initiative to incorporate a variety of perspectives in the participation program. Based on the material placed before the court, it was found that public participation was conducted, as there was no legal requirement that public participation be conducted in all the 47 counties. Based on comparative jurisprudence, the trial court found that a short public engagement period can nevertheless comply with the doctrine of reasonableness if it is adequate to the issue at hand, proportional to the level of public interest or urgency, and fair in ensuring that stakeholders have meaningful opportunities to participate, pointing out that what is reasonable depends on the circumstances surrounding the engagement. The court also took judicial notice of the fact that public participation was conducted in respect of the Finance Act 2023 in which the aordable housing levy was introduced through section 84 of the Finance Act 2023, citing the decision in Petition 181 of 2023. The trial court was therefore, satised that the steps taken by way of public participation by the two Houses of Parliament complied with the doctrine of reasonableness and that reasonable opportunities were given for public participation before the enactment of the Act. 22. Regarding the allegations that the collection of the levy was discriminatory contrary to Article 27 of the Constitution, the trial court, citing this Court’s decision in Rawal v Judicial Service Commission & another; Okoiti (Interested Party); International Commission of Jurists & another (Amicus Curiae) [2016] KECA 534 (KLR) found that while the Constitution, in principle prohibits discrimination, it also recognizes that in certain situations, armative action would be necessary to give full eect to the realization of the rights guaranteed in the Constitution. The court appreciated that whereas the collection of tax in an informal sector may pose diculties to the Kenya Revenue Authority, in light of the self- assessment tax system under section 52B of the Income Tax Act (Cap 470) , section 4 of the Act was not discriminatory and did not infringe on the provisions of Article 27(1) and (4) of the Constitution. The mere fact that the mode of collection of the housing levy as provided for by the Act is dierent, it found, does not amount to discrimination. 23. Regarding the allegation that the introduction of a levy set at a value of 1.5% of the gross salary of an employee was an infringement of Article 40(1) and (2) of the Constitution on the right to property, by introducing an extra burden on the taxpayer contrary to the provision of section 19(3) of the Employment Act, the court noted that National Government, in line with Article 209 of the Constitution, is empowered to impose Income Tax, Value- Added Tax, Excise Duty, Customs Duties on imports and exports, and any other taxes prescribed by an Act of Parliament. Since the levy was, pursuant to Article 210(1) of the Constitution, being imposed through the legal framework https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1821/eng@2026-09-25 9

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under section 4(1) of the Act, it was found that it was properly in place and was in accord with the Constitution. 24. The next issue dealt with by the trial court was the contention that the imposition of the levy infringes on the rights of Kenyans since the deduction of 1.5 % of gross salary is not only ambiguous, but is also not premised on any empirical study to show what operating the fund in any nancial year or for any period would cost and whether the revenues that will be raised by the levy at that rate are required. The trial court reiterated that under Articles 95 and 201 of the Constitution, the National Assembly enjoys broad powers to levy taxes and to determine the rate thereof, provided that the constitutional edict and the nation's economic and other policies are in tandem with the taxes levied. The court further noted that the right under Article 40 of the Constitution is not one of the non-derogable rights set out in Article 25. It therefore held that, in terms of the principles set out in Samson Gwer & 5 others v Kenya Medical Research Institute & 3 others [2020] eKLR, the petitioners failed to prove their case on this issue. 25. In concluding this issue, the learned Judges of the High Court held that section 4 of the Act did not amount to an infringement of either Article 27 or Article 40 of the Constitution. 26. Regarding allegations that the Act contravened Article 43(1)(b) of the Constitution, the trial court was of the view that the mere fact that section 10 of the Act establishes a fund for aordable housing and related infrastructure, nanced through earmarked taxes designated for specic public purposes, does not necessarily lead to unequal distribution, where some areas receive excessive funding while others are neglected, thereby threatening Article 43 of the Constitution. The court also dealt with the contentions that the Act violated Article 43(1)(b) of the Constitution in that it did not provide for the right to accessible and adequate housing and to reasonable standards of sanitation; that there was nothing in the Act about ensuring that people who live in extreme poverty will obtain and maintain adequate shelter and reasonable standards of sanitation; that the eect of the Act was that the National Government had in eect amended the Constitution to expand the rights and fundamental freedoms in Article 43(1) (b) of the Constitution to include the right to aordable housing; that sections 16, 17 and 26 of the Act had, in essence, amended Article 43(1) of the Constitution by imposing responsibility under the said Article on suering Kenyans, yet the provision of adequate housing lies with the State. 27. In the court’s view, the purpose and eect of the Act is to full the noble the constitutional duty of the State to provide housing as was appreciated by the Supreme Court in Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa (Amicus Curiae) [2021] KESC 34 (KLR) (Mitu-Bell) and in line with international instruments such as the United Nations Human Rights Declaration of 1948, the International Covenant on Economic, Social and Cultural Rights of 1966 and the Istanbul Declaration and Habitat Agenda of 1966. Consequently, it found that sections 3 and 4 of the Act were constitutional and did not in any way infringe Article 43(1)(b) of the Constitution. 28. Next to be dealt with by the trial court was the question whether the Act oended the devolution principle: by subjecting the Board and its Chief Executive Ocer to report solely to the Cabinet Secretary (CS), contrary to Articles 10 and 174; and by assigning the function of housing development to the national government, as opposed to the county governments as provided under paragraph 8 (d) part 2 of the Fourth Schedule. It was noted, as was held in Petition 181 of 2023, Law Society of Kenya v Cabinet Secretary, Ministry of Lands Housing and Urban Development and 3 others [2017] eKLR (Petition 181) and the Speaker of National Assembly and others v Senate and 12 others 2021 KECA 282 (KLR), that housing is a shared responsibility between the national and county governments where each level of government has dened roles to play. It was the court’s view that the Act did not oend the principle of devolution because the Board had representation https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1821/eng@2026-09-25 10

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from both the national and county governments and that it was geared towards the promotion of the complementarity of functions and interdependence intended by the Article 6(2) and the Fourth Schedule of the Constitution. 29. The other issue raised was whether the use of public land in the development of aordable housing as provided in sections 41 to 45 of the Act, infringes on the functions of the National Land Commission (NLC). The contention was that the Fund purported to use public/community land for purposes of selling the housing units built thereon to private individuals/corporates contrary to Article 62(2) & (3) of the Constitution that provides that all public land is held and managed and/or allocated by the NLC. It was the petitioners’ case the Act does not recognize the constitutional mandate of NLC and that there is no rationale for carrying out construction on public land and then selling the same to the private individuals/private companies, yet under Article 63 of the Constitution, all community land is held and managed in trust by county governments on behalf of the communities for which it is held. Further, it was contended, the Act does not explain whether the programme envisaged herein is aordable housing ownership or aordable rentals. 30. In determining the above issues, the trial court referred to part V of the Act and in particular section 41 thereof which deals with the implementation of the aordable housing and the denition of “public land”’ under the Land Act and asserted that it is the constitutional mandate of the NLC, as established under Article 67(1) of the Constitution, to, inter alia, manage public land on behalf of the national and county governments. However, since section 41 provides for the use of public land in accordance with the provisions of the Land Act, it was found that there is no conict between the Act and the Constitution and that the scheme of the Act accords well with the constitutional mandate of the NLC. The case of Serah Mweru Muhu v Commissioner of Lands and 2 Others [2014] eKLR, in which it was held that all land management functions must fall under the charge of the NLC, was cited in this regard. The court therefore found that there was no conict between section 41 of the Act and Article 67 of the Constitution. 31. The next issue was whether the Act was unconstitutional for failure by the Commission on Revenue Allocation (CRA) to consider the Bill as per Article 205(1) of the Constitution. The argument was that the failure by the CRA to consider the Bill, which had nancial implications for county governments, violated Article 205 of the Constitution, thus rendering the resultant Act void ab initio. The trial court appreciated the provisions of Article 205 of the Constitution and found that whereas the respondents acknowledged that the CRA ought to have considered the Bill once it was published as the Act concerned matters for both the national and county government under the Fourth Schedule of the Constitution, the CRA did not consider the provisions as required. The court, citing the advisory in the matter of Council of Governors & 47 others [2020] KESC 65 (KLR), noted that whereas in that advisory opinion the key issue was division of revenue between the two levels of government, the impugned Act did not contain any provision authorizing direct allocation of funds to the county governments without going through the established procedure in existence for sharing of revenue. According to the court, whereas the Act created the housing levy, a reading of section 11(3) thereof claried that it did not allocate a specic portion fund or amount of the levy collected under it to the county governments. It found that the Board was expected to formulate an annual investment programme to be rst approved by Parliament in the manner set out in section 15 of the Act before implementation and that it would be at that stage that the advice of CRA would be critical. Therefore, on the authority of the decision in Association of Gaming Operators- Kenya & 41 others v Attorney General & 4 others (Petition No. 56 Of 2014) [2014] eKLR, the failure by CRA to comment on the Bill before it was passed by the National Assembly was, according to the court, not necessarily fatal to the Act and that whether or not CRA participated in the process of enactment of the Act was inconsequential. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1821/eng@2026-09-25 11

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32. Regarding the retrospective application of the Act by purporting to legitimize previous payments of the housing levy under the Employment Act through section 84 of the Finance Act 2023 which was declared unconstitutional, the court, while appreciating that in the construction of statutes, there is a general presumption that statutory provisions are not meant to have a retrospective eect, cited the decision of Lord Scott of Foscote in Wilson &others v Secretary of State for Trade and Industry (2003) UKHL 40 and held that the presumption can be rebutted if the intention of the legislature is clear, either by way of the express wording of the statute in question or by necessary implication. The trial court found that section 60 of the Act was intended by Parliament to have a retrospective eect in order to preserve the transactions that had taken place under section 84 of the Finance Act 2023 prior to the determination of Petition 181 of 2023. This, the court found, did not give the Act a retroactive eect as alleged, but was intended to manage the transition involving ongoing projects hence section 60 of the Act was not unconstitutional. 33. On whether the appointment of the Commissioner General of Kenya Revenue Authority as Collector of the Levy was in accordance with the Constitution in light of Articles 2(2) and 10(2) of the Constitution, the court noted that section 5 of the Kenya Revenue Authority Act was amended to provide that the Authority would be an agent of the government for purposes of the collection and receipt of all revenue and that in section 11 of that Act, one of the functions of the CommissionerGeneral is the management of funds, property and aairs of the Authority. It found that the law has clearly designated that the collector of the Levy is the Commissioner General, KRA hence no conict in the said designation. 34. The trial court concluded that the petitioners failed to prove their case to the requisite standard and therefore dismissed the consolidated petitions but directed parties to bear own costs. 35. This is the decision that aggrieved the appellants and, we distil the following as the grounds of the two appeals, that: 1) The Learned Judges of the Superior Court erred in law and in fact in failing to consider the evidence before the court and at the same time considering irrelevant evidence, the applicable law, appellant’s submission, and thus arrived at an erroneous decision. 2) The Learned Judges of the Superior Court erred in law and in fact in justifying that the constitutionality of Aordable Housing Act 2024 despite the fact the Act disrupts the functional assignment under, devolution in the context of article 6(2) as read with articles 185(2), 186(1) and 187(2),189 and paragraph 8(d) of the 4TH Schedule of the Constitution, 2010 and violates the principle of distinctiveness and interdependence envisioned therein. 3) The Learned Judges of the Superior Court erred in law and in fact in vouching for the constitutionality of the Aordable Housing Act 2024, despite the fact that the Act violates the right to property as provided in Article 40 of the Constitution. 4) The Learned Judges of the Superior Court erred in law and in fact in entrenching communist ideologies contrary to inter alia Articles 1, 2,3,10,27,52,53,54,55,56 and 57 of the Constitution, 2010. 5) The Learned Judges of the Superior Court erred in law and in fact in their eort to sanitize the Aordable Housing Act 2024 by allowing a statute which subjects Kenyans to slavery and servitude and unfair labour practices contrary to the provisions of article 25(b) and 41 of the Constitution https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1821/eng@2026-09-25 12

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6) The Learned Judges of the Superior Court erred in law and in fact in their eort to sanitize the Aordable Housing Act 2024 by allowing the illegal and unconstitutional takeover of public land, especially on allocation/alienation where the respondents build on public land and sell the housing units to private entities. 7) In their eort to ‘sanitize’ the Aordable Housing Act 2024, the Learned Judges of the Superior Court erred in law and in fact in blatantly dismissing the results and principles of the public participation process as provided in articles 10,118 and 201 of the Constitution 8) The Learned Judges of the Superior Court erred in law and in fact by holding that public participation which had taken place under Section 84 of the Finance Act 2023 prior to its enactment can be ‘transferred’ or ‘donated’ to the Aordable Housing Act 2024, the action which has no statutory and constitutional underpinning. 9) The Learned Judges of the Superior Court erred in law and in fact in misinterpreting and misapprehending the right to access housing as provided in Article 43 of the Constitution, being the same as the right to own housing, and in the process arrived at an erroneous decision. 10) The Learned Judges of the Superior Court erred in law and in fact by wrongly holding that, inter alia, sections 3 and 4 are constitutional and do not infringe Article 43(1)(b) of the Constitution despite the contrary constitutional provisions and jurisprudence. 11) The Learned Judges of the Superior Court erred in law and in fact by trying to oust constitutional provisions on public land use/alienation and management through a statutory provision (e.g., section 41) of the Aordable Housing Act 2024. 12) The Learned Judges of the Superior Court erred in law and in not appreciating the discriminatory nature of the Aordable Housing Act 2024. 13) The Learned Judges of the Superior Court erred in law and in thwarting the legitimate expectation of Kenyans on the doctrines of legality and constitutionality 14) The Learned Judges of the Superior Court erred in law and in fact through their omissions and/or commissions by directly and/or indirectly allowing and considering the alleged deal between H.E the President William Ruto with Hon. Chief Justice Martha Koome on enacting the Aordable Housing Act 2024 by inter alia not nding even a single fault in the Act and ensuring that ‘presidency ‘wamemepanga’ mambo ya housing na mahakama’. 15) The Learned Judges of the Superior Court erred in law and in fact by arming an illegality/an unconstitutionality in the use of public land in the development of aordable housing projects, which infringes on the functions of the National Land Commission (The Act violates the principles of land use and usurps the roles of the National Land Commission) 16) The Learned Judges of the Superior Court erred in law and in fact by holding that the input of the Commission on Revenue Allocation (CRA) is not a requirement in the enactment of the Aordable Housing Act 2024, despite the clear provision of Article 205(1) of the Constitution. 17) The Learned Judges of the Superior Court erred in law and in fact by giving section 60 of the Aordable Housing Act 2024 a clean bill of health, despite its retroactive nature of the provision despite known national and international constitutional jurisprudences. (The Act violates the principle of non- retroactive application of a statutory provision. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1821/eng@2026-09-25 13

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18) The Learned Judges of the Superior Court erred in law and in fact by equating a State Corporation to an oce within a state corporation when it held that Commissioner General of Kenya Revenue Authority (KRA), is the same as KRA (and can be used interchangeably) in being designated as the collector of the Housing Levy as provided in the Aordable Housing Act 2024 19) The Learned Judges of the Superior Court erred in law and in fact by allowing taxation of Kenyans separately through the Aordable Housing Fund or any other contributory Fund to nance the construction of institutional housing 20) The Learned Judges of the Superior Court erred in law and in fact by not appreciating the state/ respondents’ action of improperly exercising powers pursuant to Article 209(4) without due regard and conformity with Article 10(2) of the Constitution and part 3 of the Bill of Rights. 21) The Learned Judges of the Superior Court erred in law and in fact by NOT appreciating that the Act violates the principle of legality and vagueness 22) The Learned Judges of the Superior Court erred in law and in fact by NOT considering other issues within the petition that include: 23) a) Constitutionality or otherwise of the government Financial Management (Kenya Slum Upgrading, Low Cost Housing and Infrastructure Trust Fund) Regulations, 2006, in its entirety or, in the alternative, regulations 4, 7, 8, and 10 thereof. b) Constitutionality or otherwise of the National Housing Policy (Sessional Paper No. 3 of 2016) c) Constitutionality or otherwise of the Senate Standing Order 111(1 to 3) of 2023. d) Constitutionality or otherwise of all ongoing aordable housing projects being undertaken under any unconstitutional law, including the unconstitutional Section 84 of the Finance Act, 2024. e) Constitutionality or otherwise of the use of the Aordable Housing Act, 2024, to amend the Constitution to expand the rights and fundamental freedoms in Article 43(1) (b) of the Constitution to include the right to ‘Aordable Housing’. f) Constitutionality or otherwise of the alleged ‘deal’ between H.E., the president William Ruto’s with Hon. Chief Justice Martha Koome on enacting the Aordable Housing Act 2024 on ‘tutapanga mambo ya housing na mahakama.’ g) The issue of structural interdict directing the Respondents to conduct a human rights impact assessment of the tax measures proposed to fund any governmental program, which was not discussed by the court h) Constitutionality or otherwise of the mandatory nature of imposing an aordable housing levy on all Kenyans regardless of their housing status. i) Constitutionality or otherwise of taxing business losses since the levy is taxed at 1.5% of the gross income The Learned Judges of the Superior Court erred in law and in fact by arming the constitutionality of the Aordable Housing Act 2024 without considering the constitutionality https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1821/eng@2026-09-25 14

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of otherwise taxing Kenyans (public ocers and state ocers) till they have nothing left to take home as employees. 36. 24) The Learned Judges of the Superior Court erred in law and in fact by not appreciating that the Act violates the taxation principle of a fair and equitable tax burden 25) The Learned Judges of the Superior Court erred in law and in fact by not appreciating that the Act violates Articles 201(1)(b), 202,218,220 of the Constitution, on Division of Revenue to the prejudice of County Governments 26) The Learned Judges of the Superior Court erred in law and in fact by not appreciating that the Act violates the objective normative value-based system of the Constitution 27) The Learned Judges of the Superior Court erred in law and in fact by not appreciating that the Act Violates Article 114(2) of the Constitution 28) The Learned Judges of the Superior Court erred in law and in fact by encouraging a lack of good governance and prudence in public nance, duplication, and wastefulness contrary to Articles 10 and 20 of the Constitution 29) The Learned Judges of the Superior Court erred in law and in fact by not appreciating the unconstitutionality and the problematic practice of earmarking of funds 30) The Learned Judges of the Superior Court erred in law and in fact by not appreciating that the Act violates Article 232 on Public Appointments, and that the Learned Judges did not discuss this aspect. 31) The learned judges goofed when they refused to discern an attack on judicial independence and nancial independence of judges by the Aordable Housing Act 2024 and refused to make a decision on the same. The appellants seek prayers that: 1) Judgement of the superior court delivered on 22nd October 2024 is hereby set aside 2) The appeal be allowed by issuing: a. A DECLARATION is hereby made that there are inherent natural law and constitutional limitations on the power of the political arms of Government (the Executive and the Legislature) to impose taxes, levies, which limitations protect taxpayers from capricious, unreasonable, arbitrary, excessive, cruel, and signicantly unpatriotic taxes/levies. b. A DECLARATION and quashing of the Housing Act (Chapter 117, Laws of Kenya), in its entirety or, in the alternative, Sections 3(2), 3(2)(d), 3(3), 4(2 & 3), 5(4, 5 and 6), 6, 8, 9, 10(e), 11 - 21, and 22 - 32 of the Act since its unconstitutional, invalid, null and void ab initio. c. A DECLARATION and quashing of inter alia Section(s) ,3(b), 4, 4(2)(a), 4(2)(b), 4(3)(b), 5, 6, 7, 8, 9, 10, 11(3)(4)(a)and(c), 12, 13, 14(5)(d), 15(2)&(3), 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 34, 36, 38, 39, 40, 41, 42, 43, 44, 45, 48, 49, 51, 52, 58 and other unconstitutional sections of the Aordable Housing Act 2024 is contrary to constitutional provisions inter alia article 1, 2, 3(1), 10, 19, 20, 21, 24, 25(b) and (C), 27(1) & (2),28,29,30,36, 40, 41, 43, 46(1)(C), 47(1), 48, 50(1)&(2), 52, 53, 54, 55, 56, 57, 93(2), 94(1)(4)(5) and (6), 109, 129, 131(2); 153(4), 159(1), 160, https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1821/eng@2026-09-25 15

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185(2), 186(1) & 187 (2); 258 & 259(1) and hence unconstitutional, invalid, null and void ab initio. d. A DECLARATION that Section 4 and 5 of the Aordable Housing Act No. 75 2024, in so far as they impose a mandatory aordable housing levy, are unconstitutional as they violate article 10, 40, and 209(5) of the Constitution e. A DECLARATION that section 16, 17, and 26 of the Aordable Housing Act, No. 75 of 2024, to the extent that it vests the National Government with the function of housing, violates article 10, 189, 207, and the fourth schedule to the Constitution. f. A DECLARATION that the Aordable Housing Act 2024 disrupts the functional assignment under devolution in the context of article 6(2) as read with articles 185(2), 186(1) and 187(2),189, and paragraph 8(d) of the 4TH schedule of the Constitution, 2010 and violates the principle of distinctiveness and interdependence. g. A DECLARATION that Articles 10, 21(3), and 201 require tax measures to be socially just, adequate, equitable, and progressive, and must not disproportionately shift the tax burden to the poor and marginalized. h. A DECLARATION that the respective houses of parliament, council of governors, and all state and state agencies failed in their duty to uphold the Constitution as required by Articles 1,2,3 and 93(2) and 94(4) of the Constitution. i. An order quashing the government Financial Management (Kenya Slum Upgrading, Low Cost Housing and Infrastructure Trust Fund) Regulations, 2006, in its entirety or, in the alternative, regulations 4, 7, 8, and 10 thereof. j. An order quashing the National Housing Policy (Sessional Paper No. 3 of 2016) in its entirety. k. An order quashing the Aordable Housing Act, 2024, in its entirety or, in the alternative, sections 1(a), 2 (on denition of aordable housing, and the appointment of KRA Commissioner General as fund collector), 3(1), 4, 5, 9(1)(b), 10(1), 11, 14, 15, 16(3), 22, 24, 25, 28(3), 30(3), 32, 33(1), 34 - 40, 42, 43, 44 - 47, 48(1), 49, 50, 52(2 and 4), 53, 54, 59, 60(2, 3 & 4), 61, and 62(4) thereof. l. An order quashing the imposition of the aordable housing levy at the rate of 1.5% or any percentage as provided in the Aordable Housing Act, 2024. m. An order quashing the Senate Standing Order 111(1 to 3) of 2023. n. An order quashing all ongoing aordable housing projects being undertaken under any unconstitutional law, including the unconstitutional Section 84 of the Finance Act, 2024. o. An order prohibiting the National Land Commission, the State Department for Housing and Urban Development, and any other State organ or agency from approving the use of or using public land for the construction of houses to be privatized under the Aordable Housing Act, 2024. p. An order prohibiting the application of the Aordable Housing Act, 2024, retrospectively. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1821/eng@2026-09-25 16

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37. q. An order prohibiting the taxing of Kenyans separately through the Aordable Housing Fund or any other contributory Fund to nance the construction of institutional housing. r. An order prohibiting the use of the Aordable Housing Act, 2024, to amend the Constitution to expand the rights and fundamental freedoms in Article 43(1) (b) of the Constitution to include the right to ‘Aordable Housing’. s. An order prohibiting the Commissioner General of the Kenya Revenue Authority from collecting the aordable housing levy. t. An order compelling the respondents, or the government of Kenya in its entirety as represented by the Hon. Attorney General, to refund all and any money collected from the public under the impugned Aordable Housing Act, 2024. u. An order compelling the Council of Governors to protect devolution by standing up for the devolved function of housing. v. An order that the Court is pleased to issue an order of judicial review by way of PROHIBITION, prohibiting/barring them from evicting Kenyans from public land ostensibly for purposes of the Aordable Housing Act and/or any other purpose except as provided by the law/constitution. w. An order of prohibition restraining the respondents from charging, levying, or in any way collecting the aordable housing levy, ‘aordable housing levy’, based on the aforesaid Aordable Housing Act. x. An order of mandamus compelling the respondents to refund the already collected amounts to the respective employers and employees and to hand over to the respective county government any housing units located within the counties. 3) Any other order and/or modication of Appellant’s prayer(s) which this Court may deem t to achieve objects of justice for the majority of Kenyans as a whole. 4) The appellants are awarded costs of the appeal and costs at the superior court against the 1st16th Respondents. We heard the appeals on 19th January 2026 when the 1st to 5th appellants, who were acting in person, were represented by the 1st appellant, while learned counsel Mr Kipkoech Ngetich appeared for the 6th appellant. Learned Senior Counsel, Prof Githu Muigai, together with learned Senior Counsel, Mr Kiragu Kimani, learned counsel, Mr Mahat Somane and learned Deputy Solicitor General, Mr Charles Mutinda, appeared for the 1st, 2nd and 3rd respondents; Learned Counsel, Mr Kuyioni, appeared for the 4th, 7th and 8th respondents; learned counsel, Ms Mwaura, appeared for the 5th respondent (the Senate); learned counsel, Mr Gaya Ochieng, together with learned counsel, Ms Diana Almadi and learned Counsel, Ms Nyandieka appeared for the 6th respondent; learned counsel, Mr Eric Theuri, appeared for the 9th respondent (the NHC); learned counsel, Mr Mulongo held brief for Mr Tali for the 16th respondent; learned counsel, Dr Gichana appeared with Mr Joshua Malidzo Nyawa and Mr Odanga for the 48th and 49th respondents. There was no appearance for the other respondents despite due service on them of the hearing notice. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1821/eng@2026-09-25 17

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38. From our consideration of the submissions made by and on behalf of the parties herein, the issues that fall for our determination and which we shall deal with concomitantly with the respective submissions are: 1. Whether the Act infringed Article 40 and 43 of the Constitution. 2. Whether the Act, as enacted, amounted to a claw back on devolution. 3. Whether the Act violated the Petitioners’ rights under Articles 27 of the Constitution. 4. Whether the use of public land for the development of aordable houses infringed on the functions of the National Land Commission. 5. Whether there was adequate public participation in the process leading to the enactment of the Act. 6. Whether the Act passes the test of clarity and certainty. 7. Whether section 60 of the Act was unconstitutional for retrospectivity. 8. Whether the Act was unconstitutional for failure by the Commission on Revenue Allocation to consider the Bill as per Article 205(1). 9. Whether the appointment of the Commissioner General of Kenya Revenue Authority as Collector of the Levy was in accordance with the Constitution. 39. At the hearing of the appeals, Dr Magare, the 1st appellant, on behalf of the 1st to the 5th appellants relied on the said appellants’ written submissions dated 20th November 2025 which he highlighted briey. 40. On the 1st issue whether the Act infringed Articles 40 and 43 of the Constitution, the issue seeks to determine whether the Act imposes taxes that are unreasonable, cruel, excessive, arbitrary, and capricious and amount to arbitrary deprivation of property. According to the 1st to 5th appellants, the Act creates a scheme through which a certain class of people (especially employees) are compelled to have their money deducted so that other people can get houses while the contributor/employee does not benet. By enacting the Act, it was contended, the respondents failed to appreciate that the common denominator in all the other levels of levies in Kenya, such as fuel levy and sugar levy, is that all those who pay them directly or indirectly benet from the sector in which they pay the levy. The housing levy, they contended, can only be constitutional if the legal framework is such that those willing to contribute to it do so with the expectation that they will get a house. However, the housing levy imposed under the Act, although a mandatory levy, compels all people even for those who do not need a house, to pay, yet Article 43 of the Constitution does not envisage a situation where everyone, including those who already have accessible and adequate housing, is forced to pay to access housing. Reference was made to Article 43(1)(a) and (f) of the Constitution on the right to education and the right to the highest attainable standard of health, which includes the right to health care services, including reproductive health care and it was submitted that those rights do not mean that everyone is forced to have education or health, even those who have already had education and/are healthy, but only provide access to everyone, so that those who have not had the education or are sick can take advantage of them and acquire knowledge/get treated. According to the appellants, Article 43(1)(f) of the Constitution provides for the right to access housing and not the right to own or rent one. 41. It was further submitted that section 54 of the Act, in limiting the use to which a housing unit owner can put it by introducing a requirement of getting consent of the Aordable Housing Board (the Board), is contrary to Article 24 of the Constitution. That Article limits the rights only to the extent that https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1821/eng@2026-09-25 18

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the limitation is reasonable and justiable in an open and democratic society based on human dignity, equality, and freedom. This, it was contended, also oends against the provisions of the Sectional Property Act whose provisions are contemplated in section 53(4) of the Act and violates the right to own property as envisaged in Article 40 of the Constitution, the right not to be deprived of freedom arbitrarily or without just cause in Article 29 of the Constitution and the rights of consumer protection against economic interests in Article 46. 42. In the said appellants’ view, the Act does not provide aordable housing, but establishes a system in which “the haves” will be able to buy the houses, and the “have-nots” remain homeless despite being compelled to pay for them, contrary to the Constitution, hence violating the taxation principle of a fair and equitable tax. The appellants submitted that the State failed to observe, promote, full, and respect the right to accessible and adequate housing, as it does not appear to have addressed the needs of vulnerable groups within society. 43. The appellants asserted that forcing people to contribute so that others can get houses is repugnant to morality and the Constitution, yet some of those being compelled to contribute for unknown houses which they do not need and will never own, are already servicing their own mortgages. By forcing people to contribute to this levy/tax without their will, it was submitted, the government seeks to subject its citizens to servitude as dened in Black's Law Dictionary, contrary to Article 25(b) of the Constitution. 44. The appellants contended that the Act essentially entrenches communist ideologies without constitutional backing and violates the right to property protected under Article 40 of the Constitution. According to the appellants, the government's intention to forcibly deduct 1.5% of an employee’s basic salary and other incomes, to facilitate the citizens/employees’ property acquisition, is unjust and morally repugnant as it imposes a one–size–ts–all approach to property acquisition which is contrary to the right to property. 45. The appellants’ case was that Article 43(1)(b) of the Constitution does not talk of forced ownership of housing and debt recovery in case of failure to pay. According to them, taxes/levies are not civil debts but are levies contemplated in Article 209(4) of the Constitution. 46. According to the appellants, the Constitution demands the “protection of the marginalized, social justice, and equity” (Article 10); “redress for the needs of the vulnerable” (Article 21(3); and “fair and equitable” tax measures (Article 201) and requires “equity and fairness” and “exibility” in tax measures (National Tax Policy, 2023). The appellants contended: that the Act is regressive because it disproportionately shifts the tax burden to the poor and marginalized; that the imposition of a at tax rate 1.5% under section 4(2) of the Act is irrational and regressive, taxing more the income of low-income earners than high-income earners; the imposition of new taxes during an economic downturn heavily impacts the ability of the marginalized, the poor, and the have-nots to enjoy their rights, especially socio- economic rights; and that citizens are further compelled to pay the tax so that they do not face the penalty under section 7 of the Act. 47. Submitting in support of this ground, the 6th appellant contended: that it is unconstitutional for the national government to impose taxes that are unreasonable, cruel, excessive, arbitrary and capricious; that sections 4 and 5 of the Act impose a mandatory levy on the income of every citizen, which is tantamount to subjecting already suering Kenyans to slavery and servitude and unfair labour practices, contrary to Articles 25(b) and 41 of the Constitution. The appellant contended that the Act deprives the citizen of the full enjoyment of their hard-earned salary and wages in an already tough economy, contrary to Article 40 of the Constitution. According to the 6th appellant, the government has imposed an irrational and unreasonable requirement by compelling people to buy houses built in https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1821/eng@2026-09-25 19

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locations that are not of their choice and, at the same time, require them to pay levies for the same. The enactment of an unfair and unreasonable legislation is, in the appellant’s view, a violation of the citizens' legitimate expectations and the case of Communication Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others [2014] eKLR was cited to support the concept of legitimate expectation. 48. The 48th and 49th respondents, while supporting the petitioners, submitted through their learned counsel, Dr Gichana, Mr Odanga and Mr Malidzo: that while the Act purports to facilitate the right to housing, its eect limits which sections of society can actually benet under it; that the Act does not address the needs of vulnerable groups within society contrary to the decision in the Social and Economic Rights Action Center (SERAC) and the Center for Economic and Social Rights (CESR) and Nigeria 155/96 at paragraphs 46 and 47; that the tax, although termed as a housing levy, takes money from citizens without a guarantee that they will receive the houses and therefore establishes a system in which “the haves” will be able to buy the houses while the “have-nots” remain homeless despite being compelled to contribute to their construction contrary to General Comment No. 4 on the Right to Adequate Housing (Art 11(1) of the International Covenant on Economic, Social and Cultural Rights which explains aordability and the State’s obligation in the context of the right to housing; and that it is not aordable to the needy, thus a retrogressive step taken by the State in terms of ensuring the realization of the right to adequate housing contrary to Article 21(2) and (3) of the Constitution. 49. According to these respondents: the learned Judge fell short of making a nding as to whether the housing levy was indeed fair and equitable as required under Article 201(b)(i) of the Constitution; the United Nations Declaration on the Right to Development, at Article 2(3), requires States to formulate national development policies that equitably improve the ‘well-being of the entire population and of all individuals’ while at Article 8, they are required to take ‘appropriate economic and social reforms to eradicate all social injustices’; that the Guiding Principles on Extreme Poverty and Human Rights, demand that scal policies concerning revenue collection, budget allocations and expenditure comply with human rights standards and principles, particularly equality and non-discrimination; and that the Constitution requires equity and fairness in taxation based on ability to pay (vertical equity) and similar tax burdens on taxpayers with similar means (horizontal equity) as discussed in Miranda Stewart ‘Reforming Tax for Social Justice’ [1998]23 (4) Alternative Law Journal 157. 50. It was further submitted on behalf of the 48th and 49th respondents: that the Act is retrogressive because it disproportionately shifts the tax burden to the poor and marginalized by imposition of a at tax rate of 1.5%; that the imposition of new taxes during an economic downturn heavily impacts the ability of the marginalized, poor, and the “have-nots” to enjoy their rights, especially socio-economic rights such as the right to food, health, and education; and that by compelling the citizens to pay the tax or face a penalty under section 7 of the Act, it compels the citizens to pay the taxes and live without realizing their socio-economic rights. 51. The 1st, 2nd and 3rd respondents, opposed this ground, submitting: that as the housing levy is a tax, Articles 209 and 210 of the Constitution mandates the national government to impose taxes on the Kenyan people; and that when considering whether a statute is constitutional, the court is restricted to examining whether the provisions of the statute violate any articles of the Constitution and whether the procedure of enacting the statute was followed, and not the policy positions taken by the Executive or the Parliament. 52. It was further submitted: that since the enactment of the Act and the delivery of the impugned judgment, there have been signicant developments, including the implementation of the aordable housing program, which make the reliefs sought by the appellants impossible, unnecessary, prejudicial https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1821/eng@2026-09-25 20

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to the Kenyan public and not feasible from a practical perspective; that on the authority of the Supreme Court decision in Wamwere and 5 Others v Attorney General [2023] KESC 3 (KLR) at paragraphs 70 to 74, the court can always take judicial notice of matters of general notoriety in accordance with section 60(1)(o) of the Evidence Act; that the situation cannot be reversed since the aordable housing program has already been implemented, and some Kenyan citizens currently occupy homes built under that program, while others are waiting to be allocated houses thereunder; and that if the reliefs sought by the appellants are granted, all the benets that could be derived from these developments and all the amounts collected and channelled towards erecting the houses will be lost. 53. In the said respondents’ view: property rights have not been infringed since the right to property under Article 40 of the Constitution is not absolute; the Act was introduced to ensure fair access to housing for all individuals, irrespective of their background or circumstances, in line with Article 27 of the Constitution; the Act has a legitimate purpose and is not intended to promote arbitrary deprivation of property as alleged by the appellants; that the decision in Pharmaceutical Manufacturing (K) Co. Limited and 3 others v Commissioner General of Kenya Revenue Authority & 2 others [2017] eKLR is authority for the proposition that the property right is not absolute and that the imposition of taxes, which accords with Articles 209 and 210 of the Constitution, cannot amount to a violation of Article 40 of the Constitution; that the questions regarding the compulsory nature of the tax and the percentage of the tax are matters within the powers exercised by the national government and not by this Court; and that since all Kenyans are entitled to apply for aordable housing units in accordance with the Act, the absence of a guarantee that all contributors of the tax will personally benet directly from their contributions does not violate Article 40 of the Constitution. 54. The view taken by the 4th and 7th respondents, on the other hand, was: that the appellants have not discharged the onus placed on them to rebut the presumption of constitutionality of the statute; that the principles to be considered in determining the constitutionality of a statute, as enunciated in the case of Georey Andare v Attorney General and 2 Others (2016) eKLR, have not been satised; that these principles are, the general presumption that Acts of Parliament are enacted in conformity with the Constitution and the purpose and eect of the impugned Statute; that as appreciated by the Supreme Court in case of Attorney-General & 2 others v Ndii & 79 others; Dixon & 7 others (Amicus Curiae) [2022] KESC 8 (KLR), as armed in Rai & 3 others v Rai & 5 others [2013] KESC 21 (KLR), the Constitution establishes Parliament as the sole law-making body and precludes all other persons or bodies from making provisions having the force of law in Kenya except under authority conferred by the Constitution or by legislation passed by the Legislature; that the impugned Act was enacted in strict compliance with the framework set out in the Constitution, and based on the presumption of legality; and that it is constitutional, the onus of rebutting that constitutionality resting on the appellants. 55. On the question of whether the Act and its purpose mirror the provisions of the Constitution, the 4th and 7th respondents referred to Articles 21(2) and 43(1)(b) of the Constitution as elucidated in H. Young and Co. (EA) v County Government of Lamu [2024] KECA 359 (KLR), and it was submitted that the Act was enacted to full the State’s obligation under Article 43(1)(b) of the Constitution by providing a framework for the development and provision of accessible and adequate housing; that the Act aims to address the housing decit and improve living conditions for all Kenyans, particularly those in the low-income group; that the National Assembly diligently fullled its mandate as outlined in Article 21(2) of the Constitution, which entails enacting legislation, formulating policies and undertaking other measures, including establishing standards, to progressively realize the rights enshrined in Article 43(1)(b) of the Constitution, and in line with the decision in Mitu-Bell; that Kenya is a signatory to the International Covenant on Economic, Social and Cultural Rights (ICESCR), which, in Article 11(1) obliges State parties to recognize the right of everyone to adequate standard of living for themselves and their families, including adequate housing and the Universal Declaration of Human Rights which, in https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1821/eng@2026-09-25 21

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Article 25(1), recognizes the right of everyone to a standard of living adequate for the health and wellbeing of himself and of his family, including housing. 56. The said respondents were of the view: that the Act is therefore a well- considered policy decision by the government which balances various competing societal interests and objectives aimed at beneting the largest section of the Kenyan population in dire need of adequate and aordable housing; that the aordable housing levy is a tax payable like other taxes, thus the prayers are not justiciable since the allegations are bereft of specicity, precision and exactitude; that the High Court in the case of Bidco Oil Reneries Limited v Attorney General & 3 Others [2013] eKLR (Bidco), armed Parliamentary authority to enact legislation or statutes that impose taxes. 57. In support of their position the 4th and 7th respondents cited, among other cases, this Court’s decision in Pharmaceutical Manufacturing (K) Co Ltd, Kumar Shah, Utamchand G. Shah, Christine D' Souza v Commissioner General of Kenya Revenue Authority, Attorney General & Commissioner of Customs Services [2017] KECA 683 (KLR) where the Court rejected the assertion that taxation deprives a person of their property and asserted that the appellants failed to demonstrate how the imposition of taxes as outlined in the Constitution violates the principles of non- discrimination and property rights. In their view, the imposition of the impugned taxes by the national government through the legislation passed by the National Assembly, in accordance with Articles 209 and 210 of the Constitution, cannot amount to discrimination or an arbitrary deprivation of property rights under Article 40. In addition, the Act does not impose any form of forced labour or involuntary servitude on individuals. 58. On the part of the 5th respondent, it was submitted: that, on the authority of the Supreme Court of India’s decision in Hambarda Wakhana v Union of India, AIR (1960) AIR 554, there is the general principle of presumption of constitutionality of statutes; that where a question arises as to the constitutionality of a statute, courts must have regard to both the purpose and eect of the statute as emphasized by the Supreme Court of Canada in the Queen v Big M. Drugmart Ltd. (1986) LRC (Const.) 332 and in this Court’s decision in Center for Rights Education and Awareness & Another v John Harun Mwau & 6 Others, Civil Appeal No. 74 and 82 of 2012; that under section 3 of the Act, the main objective of the Act is to give eect to Article 43(1)(b) of the Constitution on the right to accessible and adequate housing and to reasonable standards of sanitation; that Article 21(2) of the Constitution enjoins the State to take legislative, policy, and other measures, including the setting of standards, to achieve the progressive realization of the rights guaranteed under Article 43; that the enactment of the Act is one of the measures taken by the State to ensure that the right to accessible and adequate housing is realized; that in the Law Society of Kenya v Attorney General & Another [2019] KESC 16 (KLR), the purpose and eect of the impugned Act was considered. 59. The 9th respondent’s position was: that the Act was enacted pursuant to Article 43(1)(b) of the Constitution to address a pressing housing decit aecting millions of Kenyans; that in Muranga Bar Operators & Another v Minister for State for Provincial Administration & Internal Security & 5 Others [2011] eKLR, the Court armed that constitutional review is not a vehicle for judicial policy making and that deference must be given to legislative choices unless they clearly oend the Constitution. 60. We have considered the submissions of the parties regarding this issue. It is true that under the current constitutional dispensation, Article 40 bars the State from arbitrarily acquiring private property. However, the same Constitution recognizes that a person may be compelled to part with his property for the general good of the society and this includes the requirement for the payment of taxes in order to enable the government to full its obligations to its subjects. The power to impose tax is provided for both expressly and implicitly in the Constitution. Article 1(1) of the Constitution provides that all sovereign power belongs to the people of Kenya and is to be exercised only in accordance https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1821/eng@2026-09-25 22

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therewith. That power, according to Article 1(3) of the Constitution, is delegated to Parliament and the legislative assemblies in the county governments; the national executive and the executive structures in the county governments; and to the Judiciary and independent tribunals. Since the Constitution provides that the delegated power be exercised in accordance with the Constitution, which itself imposes certain obligations on the State organs to whom power is delegated, it follows that the people must, of necessity, facilitate the said State organs to meet their constitutional mandate. One of the ways of doing so is by nancing the said organs by way of paying taxes. This position nds favour with Prof. Fareed Moosa who, in his paper Tax Administration Act: Fullling Human Rights Through Ecient and Eective Tax Administration, states that: “ Section 7(2) of the Constitution obliges the State to “respect, protect, promote and full” the rights entrenched in the Bill of Rights. To do so necessitates that the government has sustained access to adequate nance. Financial constraints in the public treasury will hinder the State’s ability to achieve social justice through the fullment of, inter alia, socioeconomic rights. Unless the problem of strained governmental resources is overcome, the aspiration of a fully transformed society with human dignity, freedom and equality for all will have a hollow ring…Finances derived from taxes are, thus, crucial. Success of the social transformation project hinges on the eciency and eectiveness of tax collection by the South African Revenue Service (SARS). Inadequacy in public nances will hamstring the South African government’s ability to full the human rights of its people which, in turn, will give rise to cries that the government is failing in its duty under the Constitution to perform all constitutional obligations “diligently and without delay.” 61. It is in light of the foregoing that Article 209(2) and (4) of the Constitution provides that: (2) An Act of Parliament may authorise the national government to impose any other tax or duty, except a tax specied in clause (3) (a) or (b). (4) The national and county governments may impose charges for the services they provide. 62. Article 210(1) of the Constitution, however, states that no tax or licensing fee may be imposed, waived or varied except as provided by legislation. 63. From the rivalling submissions above, it is clear that the Aordable Housing Act was enacted with a view to meeting the constitutional dictates of Article 21(1) and (2) as read with Article 43(1)(b) of the Constitution both of which we have reproduced at the beginning of this judgment. 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. It is also not in doubt that there is an obligation placed on the State to take legislative, policy and other measures, including the setting of standards, to achieve the progressive realisation of the rights guaranteed under Article 43. Therefore, the enactment of the Act, if intended as a legislative step towards the realisation of the right to accessible and adequate housing, would be properly within the obligation and mandate of the State. The imposition of taxes by the government geared towards the fullment of its constitutional and statutory obligations cannot therefore be termed as a deprivation of property. As this Court appreciated in Pharmaceutical Manufacturing (K) Co. Limited and 3 others v Commissioner General of Kenya Revenue Authority & 2 others (supra): “ The unfettered power of the national Government under Article 209 to impose, waive or vary any form of taxation, be they income tax, value-added tax, customs duties and other duties on import and export goods or excise tax, is subject only to one qualication; that no tax may be imposed, waived or varied except as provided by legislation. It cannot be a https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1821/eng@2026-09-25 23

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violation of the Constitution if the Constitution itself has permitted it. It cannot, similarly constitute arbitrary deprivation or an infringement of a right to property if the deprivation, if any, is in accordance with the law.” 64. What the court may interrogate, where tax is levied by way of legislation, is not the mere fact of imposition of the tax but whether there is a legislation underpinning the levying of the tax. If such legislation exists, then the only question that the court would be called upon to determine is whether that legislation is itself constitutional. Otherwise, the court would not interfere merely because in its view, the tax imposed is oppressive. As was held by this Court in Pevans East Africa Limited & Another v Chairman, Betting Control & Licensing Board & 7 Others [2018] eKLR; (2018) KECA 332 (KLR): “ Where the Constitution had reposed specic functions in an institution or organs of State, the courts must give those institutions or organs sucient leeway to discharge their mandates and only accept an invitation to intervene when those bodies are demonstrably shown to have acted in contravention of the Constitution, the law or that their decisions are so perverse, so manifestly irrational that they cannot be allowed to stand under the principles and values of our Constitution. Courts must decline to intervene at will in the constitutional spheres of other organs, particularly when they are invited to substitute their judgment over that of the organs in which constitutional power reposes, because those organs have expertise in their area of mandate, which the courts do not normally have. We must accordingly shun invitation to dabble in matters of national economic policy, when what is placed before us are the views of only two players in one industry.” 65. Since the matter before this Court revolves around taxation, it is important to set out the general principles of law regarding taxation. Tax law and any legislation for that matter, is guided by and reects the government policy at any one given point in time. In the Canadian case of Just v R in Right of B.C. (Vancouver No. C822279), Justice McLachlin of the Supreme Court of British Columbia observed thus: “ In general, policy refers to a decision of a public body at the planning level involving the allocation of scarce resources or balancing such factors as eciency and thrift. The operational function of government, by contrast, involves the use of governmental powers for the purpose of implementing, giving eect to or enforcing compliance with the general or specic goals of a policy decision...one hallmark of a policy, as opposed to an operational, decision is that it involves planning...A second characteristic of a policy decision as opposed to an operational function is that a policy decision involves allocating resources and balancing factors such as eciency or thrift.” 66. However, it is not for this court to determine whether, in arriving at a particular policy decision, the policy maker’s decision was wise or merited. It therefore follows that the timing of a policy decision based on the prevailing circumstances does not justify the Court’s interference with the policy in question. In State of M.P v Rakesh Kohli & Anr AIR 2022 Supreme Court 2351, the Supreme Court of India held, on 11th May, 2012, that: “ 29. While dealing with constitutional validity of a taxation law enacted by Parliament or State Legislature, the court must have regard to the following principles: i. there is always presumption in favour of constitutionality of a law made by Parliament or a State Legislature; https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1821/eng@2026-09-25 24

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67. ii. no enactment can be struck down by just saying that it is arbitrary or unreasonable or irrational but some constitutional inrmity has to be found; iii. the court is not concerned with the wisdom or unwisdom, the justice or injustice of the law as Parliament and State Legislatures are supposed to be alive to the needs of the people whom they represent and they are the best judge of the community by whose surage they come into existence; iv. hardship is not relevant in pronouncing on the constitutional validity of a scal statute or economic law; and v. in the eld of taxation, the Legislature enjoys greater latitude for classication.” In Bidco, it was held that: “ It is within the authority of the legislature to enact legislation governing the manner in which a particular form of tax is administered including the manner in which it is imposed, calculated and enforced. The arguments made by the Appellant concern how the customs duty is calculated, that is an issue of the application of the Act, rather than its constitutionality. Since statutory application is really the issue here, the consideration whether Article 47(1) has been violated is dispositive. In any case, the collection of taxes through the procedures provided by the law cannot, at least in the circumstances of this case, constitute an arbitrary deprivation of property.” 68. In light of the foregoing, legislation cannot be declared unconstitutional by the mere fact that it is alleged that the prevailing economic conditions militate against the imposition of the tax. The determination of the propriety of the tax as to its timing and whether the tax payers are overburden by its imposition is a matter which belongs in other forums other than the judiciary. 69. In this case, it is contended that the Aordable Housing Act was enacted in fullment of the constitutional obligation placed on the State by Articles 21(2) and 43(1)(b) of the Constitution. This contention begs the question whether, as enacted, the Act meets the objective of the said Articles. The mere fact that a piece of legislation purports to be enacted in fullment of a constitutional provision does not bar the courts from subjecting it to constitutional scrutiny. Article 250 of the Constitution enjoins the courts to interpret the constitutional provisions in a manner that promotes its purposes, values and principles. Similarly, any legislation whose enactment is geared towards the fullment of a constitutional mandate must satisfy the constitutional purposes, values and principles as mandated in Article 259(1)(a) of the Constitution. In other words, such legislation must reect the letter and the spirit of the constitutional provision pursuant to which it is enacted. 70. In our view, Article 43(1)(b) does not place an obligation on the State to provide housing to those who already have access to aordable housing. If the State was to enact legislation whose objective is to facilitate those who already have houses to acquire more houses, such legislation would not fall within the spirit of Article 43(1)(b). Article 10 of the Constitution provides for the national values and principles of governance which are expressly stated to bind all State organs, State ocers, public ocers and all persons whenever they apply or interpret the Constitution, enact, apply or interpret any law; or make or implement public policy decisions. The foundational place of the said values is in Article 4(2) of the Constitution which provides that the Republic of Kenya shall be a multi-party democratic State https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1821/eng@2026-09-25 25

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founded on the national values and principles of governance referred to in Article 10. Some of these values are equity and social justice. Where a legislation is enacted whose eect is to enrich undeserving persons at the expense of the less fortunate members of the society, such legislation would clearly be contrary to the letter and spirit of Article 10 of the Constitution. It is therefore our view and we nd that the object of Article 43(1)(b) is to incrementally aord housing to those who, due to their vulnerability, are unable to access housing in line with the provisions of Article 20(5)(b) of the Constitution. That Article enjoins the State to be guided by the principle that in allocating resources, it shall give priority to ensuring the widest possible enjoyment of the right or fundamental freedom having regard to prevailing circumstances, including the vulnerability of particular groups or individuals. In addition, Article 21(3) of the Constitution enjoins all State organs and all public ocers to address the needs of vulnerable groups within society. Therefore, in enacting a legislation contemplated under Articles 21(2) and 43(1)(b) of the Constitution priority ought to be given to vulnerable members of the society. 71. The appellants contend that the Act does not provide aordable housing, but establishes a system in which the “haves” will be able to buy the houses, and the “have-nots” remain homeless despite being compelled to pay taxes for the construction of the houses. General Comment No. 4 on the Right to Adequate Housing (Art 11(1) of the International Covenant on Economic, Social and Cultural Rights in dealing with accessibility states: “ Adequate housing must be accessible to those entitled to it. Disadvantaged groups must be accorded full and sustainable access to adequate housing resources. Thus, such disadvantaged groups as the elderly, children, the physically disabled, the terminally ill, HIVpositive individuals, persons with persistent medical problems, the mentally ill, victims of natural disasters, people living in disaster-prone areas and other groups should be ensured some degree of priority consideration in the housing sphere. Both housing law and policy should take fully into account the special housing needs of these groups. Within many States parties increasing access to land by landless or impoverished segments of the society should constitute a central policy goal. Discernible governmental obligations need to be developed aiming to substantiate the right of all to a secure place to live in peace and dignity, including access to land as an entitlement.” 72. We must, however, point out that the right to accessible and adequate housing is not restricted only to construction of houses for the vulnerable. The right entails much more than construction of houses. This was appreciated by the Constitutional Court of South Africa (Yacoob, J) in The Government of the Republic of South Africa and 3 Others v Irene Grootboom and Others Case CCT 11/00 where he stated that: “ (35) The right delineated in section 26(1) is a right of “access to adequate housing” as distinct from the right to adequate housing encapsulated in the Covenant. This dierence is signicant. It recognises that housing entails more than bricks and mortar. It requires available land, appropriate services such as the provision of water and the removal of sewage and the nancing of all of these, including the building of the house itself. For a person to have access to adequate housing all of these conditions need to be met: there must be land, there must be services, there must be a dwelling. Access to land for the purpose of housing is therefore included in the right of access to adequate housing in section 26. A right of access to adequate housing also suggests that it is not only the state who is responsible for the provision of houses, but that other agents within our society, including individuals themselves, must be enabled https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1821/eng@2026-09-25 26

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by legislative and other measures to provide housing. The state must create the conditions for access to adequate housing for people at all economic levels of our society. State policy dealing with housing must therefore take account of dierent economic levels in our society. [36] In this regard, there is a dierence between the position of those who can aord to pay for housing, even if it is only basic though adequate housing, and those who cannot. For those who can aord to pay for adequate housing, the state’s primary obligation lies in unlocking the system, providing access to housing stock and a legislative framework to facilitate self-built houses through planning laws and access to nance. Issues of development and social welfare are raised in respect of those who cannot aord to provide themselves with housing. State policy needs to address both these groups. The poor are particularly vulnerable and their needs require special attention. It is in this context that the relationship between sections 26 and 27 and the other socio-economic rights is most apparent. If under section 27 the state has in place programmes to provide adequate social assistance to those who are otherwise unable to support themselves and their dependants, that would be relevant to the state’s obligations in respect of other socio-economic rights.” 73. The court further explained: “ (37) The state’s obligation to provide access to adequate housing depends on context, and may dier from province to province, from city to city, from rural to urban areas and from person to person. Some may need access to land and no more; some may need access to land and building materials; some may need access to nance; some may need access to services such as water, sewage, electricity and roads. What might be appropriate in a rural area where people live together in communities engaging in subsistence farming may not be appropriate in an urban area where people are looking for employment and a place to live.” 74. The State must therefore not only concentrate on the construction of aordable houses for those who are disadvantaged from accessing housing by virtue of their low income (the low-income earners) but must also consider those who have no source of income or “the poor of the poorest” (the no-income earners). It must go further and take measures that will enable those desirous of putting up houses to do so without incurring too much expenses. When this is done, the market rates for the purchase or renting of such houses would be considerably lowered and most people would aord dignied housing. In this regard the State must take deliberate steps to reduce the costs of construction by ensuring that the cost of construction materials is kept within reasonable levels. That way the interests of the noincome earners, the low-income earners and those capable of undertaking constructions would be catered for without any one class feeling that it is being suppressed for the benet of any other class. While the low income earners may be assisted by the State in acquiring title to aordable housing, the no income earners, are those who, in our view were contemplated by the Supreme Court in Mitu-Bell when it held that: “The right to housing in its base form (shelter) need not be predicated upon “title to land”. Similarly, the State must appreciate that access to aordable housing is contextual and peculiar needs of dierent segments in the society must be taken into account. “One size ts all” approach must therefore avoided. 75. In our view, for the no-income earners, the legislation geared towards the realisation of their right to accessible and adequate housing must have in-built mechanisms for identifying the deserving members https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1821/eng@2026-09-25 27

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of the society as well as regular monitoring of the change in their status so as to ensure that only those deserving such amenities do benet from them. Unless this is done there is a real danger that the aordable housing project may be a tool for the political class to reward the cronies, supporters and court jesters at the expense of those deserving of its benet and for which the right is constitutionally intended. 76. Does the existing statutory and regulatory framework make provisions that conform to constitutional expectations with regard to accessible and aordable housing? Regulations 3, 5 and 7 of the Aordable Housing Regulations, 2025 provide for the eligibility criteria for allocation of an aordable housing unit in the following terms: 3. A person is eligible to be allocated an aordable housing unit if that person— a. is a citizen of Kenya; b. has attained the age of eighteen years; c. has not been previously allocated an aordable housing unit; and d. has not been previously advanced a loan for the development of a rural aordable housing unit. (1) A person who meets the eligibility criteria specied in regulation 3 and intends to purchase an aordable housing unit shall submit to the Board an electronic application for allocation of an aordable housing unit in Form 1 set out in the Schedule. (2) The Board shall, within ninety days after receiving an application made under paragraph (1)— 4. a. verify the authenticity of documents attached to the application; and b. evaluate the ability of the applicant to meet the payment obligations for the selected aordable housing unit. (1) Upon the successful determination of an application made under regulation 4, the Board shall allocate an aordable housing unit categorised in accordance with regulation 21, to the applicant. (2) Where the application made under regulation is for a tenant purchase scheme, the Board shall take out a group life insurance cover for the outstanding amount payable by the applicant, whose premiums shall be payable by the applicant. (3) A person who has been allocated an aordable housing unit under paragraph (1) shall remit the payments, interests and other charges for the aordable housing unit, in accordance with the agreement entered into by the Board and the person. 5. 7. The amount of the deposit payable for the purchase of an aordable housing unit shall be up to ve percent of the purchase price of the aordable housing unit. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1821/eng@2026-09-25 28

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77. Section 49(2)(a) of the Act provides that an application for allocation of an aordable unit shall be accompanied by proof of requisite deposit as may be prescribed by the Cabinet Secretary. 78. A consideration of the above provisions as well as Form 1—Application for Allocation of an Aordable Housing Unit - leads to the conclusion that the aordable housing program, as envisioned under the Act, is meant for those intending to purchase or develop aordable housing. In other words, the low-income earners and the developers. It does not cater for the no income earners. It locks out of consideration those who, in our view, are most deserving of the constitutional intervention. It does not take into account the future change of status of the allottees subsequent to the allotments, as a result of which they may nolonger be entitled to the benet of the aordable housing. This is because section 53(1) of the Act provides that: “ the Board shall, with the approval of the Cabinet Secretary, transfer the ownership of an aordable housing unit to a qualied applicant upon completion of payment of the agreed price.” 79. Subsection (4) provides that: The registration of an owner of aordable housing units shall be undertaken in accordance with the Sectional Properties Act. 80. We are however alive to the fact that pursuant to Article 21(2) of the Constitution, the legislative, policy and other measures, including the setting of standards, meant for the realisation of the rights guaranteed under Article 43 are to be achieved progressively. As to what constitute “progressive realization”, the Supreme Court in the Matter of the Principle of Gender Representation in the National Assembly and the Senate Advisory Opinions Application 2 of 2012, [2012] eKLR explained that: “ …the expression “progressive realization” is neither a stand-alone nor a technical phrase. It simply refers to the gradual or phased-out attainment of a goal-a human rights goal which by its very nature, cannot be achieved on its own, unless rst, a certain set of supportive measures are taken by the State. The exact shape of such measures will vary, depending on the nature of the right in question, as well as the prevailing social, economic, cultural and political environment. Such supportive measures may involve legislative, policy or programme initiatives including armative action.” 81. Progressive realization is premised on the understanding that Economic, Social and Cultural (ESC) rights in their entirety may not be achieved in a short period of time. The remedies must therefore be crafted that consolidate the gains already made and aim towards the full realization of the rights. Progressive realization, while useful in incremental progression of realization of rights should, however not be used to justify States’ inactivity and therefore understood to be an excuse for the State to resile from fullling its obligation’s meaningful content. Instead, it should be understood as imposing an obligation to move as expeditiously and eectively as possible towards the full realization of the rights. In other words, those on whom an obligation is imposed to ensure the rights are realized must not remain inactive and must not defer to another time the design and implementation of steps that aim at the full realization of ESC rights. Deliberate, concrete and targeted steps must be made towards meeting obligations under the Constitution. As courts, while appreciating the progressive realization of these rights, we must always be alive to the need to move forwards rather than to stagnate the realization of the rights. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1821/eng@2026-09-25 29

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82. Whereas the Act, as enacted, cannot be said to have fully met the constitutional expectation in Article 43(1)(b) of the Constitution, as correctly submitted on behalf of the 5th respondent, the enactment of the Act is but one of the measures taken by the State to ensure that the right to accessible and adequate housing is realized. More needs to be and must be done going forward. We cannot therefore conclude that the Act is unconstitutional merely because it does not fully address the constitutional expectation under Article 43(1)(b) of the Constitution. While nothing bars the courts, when properly moved, from determining whether the steps being taken by the State in fullment of those rights are adequate, that issue falls outside the purview of the instant appeal. 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. This was the position of the Supreme Court in Mitu-Bell where it held that: “ From the foregoing, the question as to when the right to housing accrues, in our view, is not dependent upon its progressive realization. The right accrues to every individual or family, by virtue of being a citizen of this Country. It is an entitlement guaranteed by the Constitution under the Bill of rights. The persistent problem is that its realization depends on the availability of land and other material resources.” 83. The 2nd issue for determination is whether the Act amounts to a claw back on devolution. In other words, as the appellants frame it, does the Act disrupt the functional assignment under devolution in the context of Article 6(2) of the Constitution and Parts 1 and 2 of the 4th Schedule to the Constitution as read with Articles 185(2), 186(1) and 187(2) of the Constitution? In this regard, the 1st to 5th appellants submitted: that the national government is exclusively assigned the function on housing policy in Part 1 while Part III thereof exclusively assigns the mandate on implementation of housing to county government; that, on the authority of the case of Council of Governors & 3 others v Senate & 53 Others [2015] eKLR, while the Constitution gives the two levels of government distinct roles, the system of cooperative governance imposes the obligation to respect the constitutional status and integrity of the institutions of the other level of government; that neither the national government nor the national legislature can, by way of legislative powers, take over the functions of the county governments; that the county governments have not requested any assistance from the national government to help the counties in making laws to govern housing as envisaged in Article 185(2) of the Constitution, nor have the county governments transferred their housing function to the national government as envisaged in Article 187 of the Constitution; that on the authority of County Government of Kiambu & Another v Senate & 4 Others [2017] eKLR, the involvement of the national government in and above its role of policy formulation is contrary to 4th Schedule paragraph 8(d) of the Constitution; that in this case, sections 15(2) and (3) and 16 of the Act sets out the composition of the Board comprising entirely of national government appointees, making it a national government aair yet the function of housing project ought to be that of the county government; and that, on the authority of the case of The Institute for Social Accountability v The National Assembly Petition No. 1 of 2018, pursuant to Article 179 of the Constitution, the service delivery mandate, an executive function, relating to functions assigned to the county governments ought to be exercised by the County Executive Committee, not by the national government or the Board. 84. According to the appellants, the Act violates the principle of distinctiveness in that: under section 6 of the Act, the management of the imposition or exception of the housing levy is left to the Cabinet Secretary for Treasury at the national level; section 10 of the Act mandates a board at the national level to, among other things, facilitate the development of institutional housing units; section 16(3) of the Act establishes a board to manage the aordable housing fund whose composition is made up of appointees of the national government save for nominees of the Council of Governors; Part IV https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1821/eng@2026-09-25 30

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of the Act (sections 34-40) provides for a subservient role of the county governments to that of the national government in aordable housing, in that the rural and urban aordable housing committees are made to operate below the Board which operates at the national level; and that the Act violates the constitutional principle of interdependence in that the national government and the Parliament did not consult the county governments before the commencement of the housing project. 85. The appellants submitted that Kenyans envisioned a society founded on values and principles, as seen in Article 10 of the Constitution, such as the rule of law, transparency, accountability, devolution of powers and good governance, thus an attempt to disrupt the organizational structure of governmental power by the Act violates this normative value-based system. According to the appellants, the normative value-based system is also violated when laws do not entrench accountability and limit power such as in section 7 of the Act that grants the Cabinet Secretary for Treasury unchecked powers on the income and category of people that can be exempted from the application of the housing levy. In their view, the entire framework of the Act creates a board with massive powers and unseen discretion on fund management, reporting only to the Cabinet Secretary for the Treasury, who wields massive powers over those who sit on the Board. 86. On its part, the 6th appellant submitted that the national government is mandated to deal with policy matters in the housing sector, while the county government has the mandate to deal with the actual planning and development of housing units. According to him, the national government is therefore in blatant violation of the principles of sharing and devolution of power. 87. Supporting this ground, the 48th and 49th respondents submitted: that Article 6(2) of the Constitution entrenches the distinctiveness of the two levels of government, thereby conferring a certain measure of autonomy on each of them; that, on the authority of the decisions in Council of Governors & 3 Others v Senate & 53 Others (supra) and County Government of Kiambu & Another v Senate & Others (supra), Article 189(1)(a) of the Constitution, imposes an obligation on both levels of government to respect the functional and institutional integrity of the government at the other levels in the performance of their functions and exercise of their powers; that pursuant to Article 186(1) of the Constitution as read with paragraph 20 of Part 1 and paragraph 8(d) of Part 2 of the 4th Schedule, the national government has only a housing policy mandate while the county governments have authority over the planning and development of housing; and that the only circumstances envisioned by the Constitution under which one level of government may perform the functions of the other is in the context of a transfer of functions, the preconditions and parameters of which are specically detailed under Article 187 of the Constitution. 88. It was their position: that in passing the Act, Parliament usurped the functions of the county governments on housing and gave them to the national government, contrary to the provisions of Article 187 on the intergovernmental transfer of functions and powers; and that the Act goes beyond the national government’s constitutional policy mandate and oends the binding jurisprudence of the Supreme Court in The Institute for Social Accountability v The National Assembly, (supra). Reiterating the submissions made above, it was submitted that the principle of interdependence does not mean a unilateral usurpation of county functions outside Article 187 of the Constitution but requires consultation between the two levels of government and other organs. In this case, in passing the Act, the national government and Parliament did not consult the county governments before the commencement of the aordable housing project. 89. The said respondents asserted: that the learned Judges erred in failing to hold that the national government, in passing the Act, usurped the functions of county governments and the role of the county executive committee, an action that poses a threat to the devolution dream; that the learned Judges failed to consider the impact of the Act on the constitutional design and framework for the https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1821/eng@2026-09-25 31

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raising and sharing of revenue under Articles 201, 202, 209 and 218 of the Constitution; that the implementation of the Act will prejudice the counties by taking away revenue that ought to accrue to them ordinarily, yet Article 218 of the Constitution requires an annual legislative instrument to guide the revenue-sharing process, ensuring equitable distribution between the national and county governments; that while the constitutional design aims to distribute revenue exclusively between these two levels of government, without introducing a third tier or institution that could disrupt the revenue- sharing formula, section 9(2) of the Act distorts this formula by excluding these funds from the nationally raised revenue; that, on the authority of The Institute for Social Accountability Case (supra), such exclusion undermines the equitable distribution of revenue intended by the Constitution, thereby violating the established revenue-sharing framework; and that allowing a national government agency or an unclear third structure to share this revenue violates Articles 202(1) and 218(1)(a) of the Constitution. 90. The 48th and 49th respondents asserted: that only the national and county governments are entitled to participate in the vertical division of nationally raised revenue, yet section 16 of the Act creates the Board and Aordable Housing Fund (the Fund) which duplicate the functions of the National Housing Corporation and the National Housing Development Fund respectively established under the Housing Act; that the court in the case of Azimio La Umoja One Kenya Coalition Party v The President of Kenya Pet. No. E153 of 2023, nullied a Presidential Commission of Inquiry for duplicating the functions of a constitutional commission; and that the duplicated body and funds under the Act are unconstitutional, and the Court is obligated to declare them as such, given that the eect of their operationalization would be to violate the constitutional principles of prudent and responsible use of resources under Article 201(d) of the Constitution. The two respondents contended that the court failed to address the impact of the Cabinet Secretary for the Treasury’s unlimited powers under section 7 of the Act, as well as the unchecked power of the Board, on the constitutional requirement for accountability, which is part of the Constitution’s objective normative value-based system. 91. The 1st, 2nd and 3rd respondents, while opposing the appeals submitted: that the appellants' submission that the Act is unconstitutional because it oends Articles 10 and 174 of the Constitution by assigning the function of housing to the national government is based on the misapprehension that all functions relating to housing are meant solely for the county governments; that on the authority of the cases of Okoiti & 6 others v Cabinet Secretary for the National Treasury and Planning & 3 others; Commissioner-General, Kenya Revenue Authority & 3 others (Interested Parties) [2023] KEHC 25872 (KLR) and Law Society of Kenya v Cabinet Secretary, Ministry of Lands Housing and Urban Development and 3 others [2017] eKLR, housing is a shared function between the national and county governments; that this Court in Speaker of National Assembly and others v Senate and 12 others 2021 KECA 282 (KLR), dismissed an argument that contributions to the National Housing Development Fund infringed county government functions; that there is nothing irregular in the national government and county governments cooperating to ensure compliance with Article 43(1)(b) of the Constitution since as held in Senate & 2 others v Council of County Governors & 8 others [2022] KESC 7 (KLR), the purpose and eect of devolution as enshrined in the Constitution should not be interpreted in a disjunctive manner to prevent meaningful collaboration and co- existence between the county and national governments; and that the High Court, while considering this issue, held that the Act did not oend devolution because the Board has representations from both the national and county governments. 92. The 4th and 7th respondents, while also opposing this ground, submitted: that housing policy falls within the purview of the national government, and the aordable housing project and Act are integral to this policy; that the concept of cooperative governance underscores the necessity for https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1821/eng@2026-09-25 32

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interdependence between the national and county governments; that the Act does not infringe upon the responsibilities of county governments, but rather, aims to supplement and bolster their endeavours in housing development; that the provisions of the Act align with the constitutional mandate of the national government to formulate housing policy, as outlined in the Fourth Schedule to the Constitution; that sections 34, 38, 39 and 40 of the Act provide for the functions of the county governments insofar as the implementation of the aordable housing program is concerned; and that the Act primarily provides a regulatory and funding framework for aordable housing initiatives and delineates responsibilities clearly to prevent overreach into county functions, thus maintaining respect for functional assignments. 93. It was the 4th and 7th respondents’ position: that the Act mandates the establishment of a board that includes representation from both levels of government to oversee housing projects, fostering a collaborative approach, consistent with the principles of consultation and cooperation emphasized in the Constitution; that the Board operates within a national policy framework while respecting the operational roles of county governments, ensuring a clear division of functions consistent with the Constitution; that since housing is a shared function under the Fourth Schedule to the Constitution, executing such a mandate requires a concerted joint eort of both the national and county governments; that in light of the provisions of Article 21(2) of the Constitution, it is false and misleading for the appellants to allege that the Act unconstitutionally encroaches on areas exclusively delegated and reserved to county governments. 94. It was their position that Article 6(2) of the Constitution recognizes the fact that the governments at the national and county levels are distinct and interdependent and the provision enjoins them to conduct their mutual relations based on consultation and cooperation and in accordance with the legislation, policies and standards set by the State. In their view, the Act forties cooperative governance and aligns seamlessly with Articles 6(2), 185(2), 186(1), 187(2) and paragraph 8(d) of the Fourth Schedule of the Constitution. 95. The 9th respondent, in its opposition to this ground, submitted: that Article 186(1) and the Fourth Schedule of the Constitution clearly delineate the responsibilities of the two levels of government with respect to housing; that the national government is charged with the formulation of housing policy, while the county governments are responsible for county planning and development, including the implementation of housing initiatives within their jurisdiction as was appreciated in Ahmed Bashir Abdi v B.M Mule, Garissa County Director of Housing & 4 Others [2022] eKLR; that in the Supreme Court decision in Senate & 2 others v Council of County Governors & 8 others (supra), the Court emphasized the doctrine of cooperative government; that from the General Comment No. 4 of the UN Committee on Economic, Social, and Cultural Rights, which elaborates on Article 11(1) of the ICESCR, outlining the key elements that constitute adequate housing, it is evident that housing is a multidimensional and cross-sectoral function that extends far beyond physical shelter; that adequate housing intersects with national responsibilities in infrastructure managed by the national government, thus it is an error to interpret the housing function as falling exclusively within the domain of county governments, as suggested by the appellants; and that while the county governments have a vital role in planning and implementing housing projects within their jurisdiction, without a national policy direction, resource allocation, and regulation, those eorts would be fragmented, inequitable and unsustainable. 96. The 9th respondent asserted: that the Act does not violate the principles of devolution but institutionalizes cooperative governance through mechanisms such as the Board, which provides for joint representation by the national and county governments; that as held by the Constitutional Court of South Africa in The Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1821/eng@2026-09-25 33

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(CC), the realisation of the right to housing is a shared responsibility among all spheres of government, a position mirrored in Mitu-Bell where it held that the realisation of housing rights under Article 43 of the Constitution involves multiple rights and responsibilities, and that progressive implementation must be undertaken by the State as a whole; that the Act neither distorts the functional assignment under the Constitution nor violates the principle of devolution, but operationalizes a framework for intergovernmental collaboration in addressing a national housing crisis, in line with Articles 6(2) and 187 and the spirit of the Fourth Schedule to the Constitution. 97. We have considered the submissions made by the parties in respect of this issue. It is not in doubt that under the current constitutional dispensation, devolution is one of the pillars of the nation. Although, under Article 1 of the Constitution sovereign power belongs to the people, it is delegated to, inter alia, the national executive and the executive structures in the county governments and is to be exercised at both the national and county levels. Pursuant to Article 6(2) of the Constitution, the governments at the national and county levels are distinct and inter-dependent but are enjoined to conduct their mutual relations on the basis of consultation and cooperation. 98. In this case the appellants’ complaint is that the manner in which the Act is crafted strips the county governments of their function as regards housing which is conferred on them under the Fourth Schedule. The main culprits, according to the appellants are: sections 6 and 7 which provide for the imposition or exemption from the housing levy and grants to the Cabinet Secretary for Treasury unchecked powers on income and the category of people that can be exempted from the application of the housing levy contrary to Article 179(1); section 10 of the Act under which the Board is mandated to, among other things, facilitate the development of institutional housing units; sections 15(2) and (3) and 16(3) of the Act which establish a board to manage the aordable housing fund whose composition is made up of appointees of the national government; and Part IV of the Act (sections 34-40), which subordinates the role of the county governments in relation to the national government by placing the operations of the County Rural and Urban Aordable Housing Committee below the Board, which operates at the national level. The respondents in the petition are faulted for not consulting the county governments before the commencement of the aordable housing project. 99. The respondents however are of the view that the enactment of the Act was in accordance with the constitutional edict and that housing being a shared function, the concept of cooperative governance underscores the necessity for interdependence between the national and county governments. In their view, the Act, whose provisions align with the constitutional mandate of the national government to formulate housing policy, does not infringe upon the responsibilities of county governments, but rather, aims to supplement and bolster their endeavours in housing development. Sections 34, 38, 39, and 40 of the Act, they submit, provide for the functions of the county governments insofar as the implementation of the aordable housing program is concerned and provides a regulatory and funding framework for aordable housing initiatives while clearly delineating responsibilities to prevent overreach into county functions, thus maintaining respect for functional assignments. 100. That housing is a shared function between the two levels of government is not in doubt. To that extent we agree with the respondents’ position that the realisation of housing rights under Article 43 of the Constitution involves multiple rights and responsibilities and that progressive implementation must be undertaken by the State as a whole. It is the extent to which that function is to be shared that is in contest. In our view, the consultation and cooperation alluded to in Article 6(2) of the Constitution, must be conducted strictly within the constitutional parameters. It is in that sense that we understand https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1821/eng@2026-09-25 34

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the Supreme Court’s position in Senate & 2 others v Council of County Governors & 8 others (supra) that: “ Purely, by the design and architecture of the Constitution and by the clear language of Article 1 (3) and (4) of the Constitution, the people of Kenya intended that their sovereign power be exercised at two levels of government; the national and county levels. The Constitution also declares that the two levels are distinct but inter- dependent. They are expected, indeed, bound to conduct their mutual relations on the basis of consultation and cooperation. However, to avoid gridlock in their operations, even as they consult and cooperate, the two levels of government must perform their functions and exercise their powers in a manner that respects the functional and institutional integrity of each other. At the county level, the county government consists of a county assembly and a county executive. The executive authority at the county is vested in, and exercised by a county executive committee, consisting of the county governor, the deputy county governor and members appointed by the county governor, while the county assembly exercises legislative authority at that level. See Articles 6 (2), 189 (1), 176(1), 177 and 179(1) of the Constitution… The point we are making with the analysis above, is that there is nothing irregular in the members of parliament and national executive engaging, consulting, cooperating and coordinating with the devolved units for the sake of protecting devolution and achieving its objects. There are many examples of such entities as we demonstrate in the next few paragraphs. But we stress that the engagement, consultation, cooperation and coordination envisaged must be done ‘in a manner that respects the functional and institutional integrity…the Constitutional status and institutions of the county government’, as decreed by article 189(1) of the Constitution.” 101. Further on, the Court expressed itself as follows: “ As we consider this appeal, we shall bear in mind the following constitutional principles contained in Articles 1(4) 2, 6 and 189 of the Constitution, to the eect that the sovereign power of the people is exercised, both at the national and county levels; that the Constitution as the supreme law, binds all persons and all State organs at both levels of government; that no person may claim or exercise State authority except as authorised under the Constitution; that the territory of Kenya is divided into 47 counties specied in the First Schedule; that the government at either level will perform its functions, and exercise its powers, in a manner that respects the functional and institutional integrity of government at the other level; and nally that, though the two levels of government are distinct and inter-dependent, they conduct their mutual relations on the basis of consultation and cooperation. To achieve that purpose, they are enjoined to set up joint committees and joint authorities.” 102. This, according to the Supreme Court: “ …signies the commonality of purpose of the two levels of government and the need to ensure harmony in the discharge of their respective functions, which can only be achieved through consultation and cooperation. The two levels are bound by national values and principles of governance espoused in article 10 and guided by the objects of devolution in article 174. In the process of budgeting and planning, consultation between the national government and county governments is a key requirement under article 220(2)(c). The form and manner of such consultations are provided for in the national legislation.” https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1821/eng@2026-09-25 35

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103. Article 10 of the Constitution recognises devolution of power as one of the national values and principles of governance on the basis of which our republican multi- party democratic State is founded. Appreciating the position of devolution in Kenya’s transformative Constitution, Mutunga, CJ in Supreme Court case of Speaker of the Senate & Another v Hon. Attorney-General & Another & 3 Others Advisory Opinion Reference No. 2 of 2013 [2013] eKLR, expressed himself as follows: “ The current devolution provisions in Chapter 11 of the new Constitution are a major shift from the scal and administrative decentralisation initiatives that preceded it. It encompasses elements of political, administrative and scal devolution. There is a vertical and horizontal dispersal of power that puts the exercise of State power in check...Devolution is the core promise of the new Constitution. It reverses the system of control and authority established by the colonial powers and continued by successive Presidents. The large panoply of institutions that play a role in devolution-matters, evidences the central place of devolution in the deconstruction- reconstruction of the Kenyan state...” 104. In determining this appeal, this Court must always have the constitutional transformative lens in sight. Article 186(1) of the Constitution provides as follows: Except as otherwise provided by this Constitution, the functions and powers of the national government and the county governments, respectively, are as set out in the Fourth Schedule. 105. The Fourth Schedule to the Constitution is titled “Distribution of Functions Between the National Government and the County Governments”. Part 1 sets out the functions of the national government and at clause 20 one such function is “housing policy”. Part 2 of the Schedule sets out the functions of the county governments and at clause 8(d) thereof one such function is “county planning and development, including housing”. Clearly therefore, whereas, the two levels of government are interdependent and are to conduct their mutual relations on the basis of consultation and cooperation, Article 6(2) expressly states that they are distinct. They are “distinct” but “interdependent”. No level of government can therefore usurp the functions of the other level, save to the extent permitted by the Constitution. 106. In order to determine this issue, it is therefore, necessary to interrogate the relationship between the national and the county governments. In doing that, we are guided by the provisions of Article 259(3) which provides that “every provision of this Constitution shall be construed according to the doctrine of interpretation that the law is always speaking.” Article 259(1) provides the constitutional interpretative tools thus: “ (1) This Constitution shall be interpreted in a manner that-a. promotes its purposes, values and principles; (b) advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights; (c) permits the development of the law; and (d) contributes to good governance.” https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1821/eng@2026-09-25 36

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107. The Supreme Court, in Munya v Kithinji & 2 others [2014] KESC 38 (KLR), citing with approval the statement of Lord Griths in Pepper v Hart para 1992 3 WLR, discussed the said tools and reiterated that: “ The courts now adopt a purposive approach which seeks to give eect to the true purpose of legislation and are prepared to look at much extraneous material that bears upon the background against which the legislation was enacted.” 108. The same Court Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] KESC 53 (KLR), pointed out that the Constitution should be interpreted holistically, within its context, and in its spirit, a position that was similarly adopted by that Court in Judges and Magistrates Vetting Board v Kenya Magistrates and Judges Association & another [2014] KESC 4 (KLR). In that case, the Supreme Court held that courts ought to consider the “broad purposive interpretation guided by our constitutional values and principles, precedent and developed judicial doctrine and considerations of justice, practicality and public policy based on our developing theory of constitutional interpretation.” 109. Emphasising the need to interpret the Constitution holistically, the Supreme Court, In the Matter of the Principle of Gender Representation in the National Assembly and the Senate [2012] KESC 5 (KLR), pronounced that: “ We would state that the Supreme Court, as a custodian of the integrity of the Constitution as the country’s charter of governance, is inclined to interpret the same holistically, taking into account its declared principles, and to ensure that other organs bearing the primary responsibility for eecting operations that crystallize enforceable rights, are enabled to discharge their obligations, as a basis for sustaining the design and purpose of the Constitution.” 110. Addressing itself to the formula for determining whether the principle of separation of powers has been violated, the Supreme Court in Institute for Social Accountability & another v National Assembly & 5 others [2022] KESC 39 (KLR) opined that: “ 117. We remind ourselves that ours is a value- based Constitution [see In the Matter of the Principle of Gender Representation in the National Assembly and the Senate, Advisory Opinion No 2 of 2012; [2012] eKLR, at para 54]. Therefore, the organizational framework of governance serves the purpose of furthering the goal of realization of the national values and principles articulated in the Constitution. This is so because the values and principles are not self- executing, rather they are realized through the institutional fabric woven throughout the Constitution including through the separation of powers that undergirds the organizational structure of governmental power. This makes the question as to whether the legislative structure of an institution reinforces/promotes or detracts from the national values and principles articulated in the Constitution to have a bearing on whether the separation of powers is violated or not. 118. Given the foregoing analysis, we now adopt a two-pronged test to be used in assessing whether a particular allocation of mandate, function, or power to a public agency or institution amounts to an unconstitutional intrusion that threatens or violates the separation of powers. The two limbs of the test are: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1821/eng@2026-09-25 37

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111. a. Whether the mandate, functions or powers of the subject state agency, or institution unjustiably strays into the nucleus, core functions, or pre-eminent domain that are the exclusive competence of another branch of government from a functional point of view? and b. Whether the exercise of the subject assigned mandate, functions, or powers will harm or threaten the realization of the national values and principles articulated in the Constitution?” In determining whether the national government has hijacked the constitutional mandate of the county governments, and vice versa, we are guided by the tests set out in the above cited decisions as well as the decision of the South African Constitutional Court, in Government of the Republic of South Africa and Others v Grootboom and Others [2000] ZACC 19, in which it was held that: “ Eective implementation requires at least adequate budgetary support by national government. This, in turn, requires recognition of the obligation to meet immediate needs in the nationwide housing programme. Recognition of such needs in the nationwide housing programme requires it to plan, budget and monitor the fullment of immediate needs and the management of crises. This must ensure that a signicant number of desperate people in need are aorded relief, though not all of them need receive it immediately. Such planning too will require proper co-operation between the dierent spheres of government.” 112. The fact of shared responsibility was appreciated by Lenaola, J (as he then was) in Law Society of Kenya v Cabinet Secretary, Ministry of Lands Housing and Urban Development & 3 others [2017] KEHC 8707 (KLR). In that case, the learned Judge held that the mandate of the national government involves the accreditation, regulation and promotion of quality assurance and technical capacity assistance in the construction industry at large, while the county governments’ mandate in housing is to the extent of planning and development within a county. 113. Confronted with the question as to whether the contributions to the National Housing Development Fund infringed county government functions, this Court in Speaker of National Assembly and others v Senate and 12 others [2021] KECA 282 (KLR) held that: “ 161. 114. … An examination of the Act indicates that notwithstanding that the amendments are housing related, the central theme is the establish of a National Housing Development Fund into which employer and employee contributions are to be paid, the sums of which would go towards nancing the building of aordable housing units. In so far as the enactments concern the imposition of taxes under article 209 of the Constitution, which are paid into the National Housing Development Fund, we nd that the national perspective upon which the housing development policy is founded is not a county function to which article 110(3) of the Constitution required to be applied. The High Court was therefore wrong to declare the amendment unconstitutional.” Article 43(1)(b) of the Constitution provides that every person has the right to accessible and adequate housing. Under Article 21(1) and (2), the State and State organs have the duty to observe, respect, protect, promote, and full the rights and fundamental freedoms in the Bill of Rights, and must take https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1821/eng@2026-09-25 38

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legislative, policy and other measures to achieve the progressive realization of the rights guaranteed under Article 43. The Supreme Court in Mitu-Bell held that the realisation of housing rights under Article 43 of the Constitution involves multiple rights and responsibilities, and that progressive implementation must be undertaken by the State as a whole. It is our position that the Act seeks to respond to the challenges of implementing the right to the housing. In Mitu-Bell, the Supreme Court highlighted the challenges faced in the implementation of the right to housing as follows: “ From the foregoing, the question as to when the right to housing accrues, in our view, is not dependent upon its progressive realization. The right accrues to every individual or family, by virtue of being a citizen of this Country. It is an entitlement guaranteed by the Constitution under the Bill of rights. The persistent problem is that its realization depends on the availability of land and other material resources. Given the fact that our society is incredulously unequal, with the majority of the population condemned to grinding poverty, the right to accessible and adequate housing remains but a pipe-dream for many. What with each successive government erecting the defence of “lack of resources? The situation is compounded by the fact that, for reasons incomprehensible, the right to housing in Kenya is predicated upon one’s ability to “own” land. In other words, unless one has “title” to land under our land laws, he/she will nd it almost impossible to mount a claim of a right to housing, even when faced with the grim possibility of eviction.” 115. We hold that the Act seeks to surmount the challenge of non- availability of land by marshalling the national and county resources with a view to implementing, at least to some extent the right to accessible and adequate housing. 116. The South African Constitutional Court in Government of the Republic of South Africa and Others v Grootboom and Others (supra) emphasized that the realization of the right to housing is a shared responsibility among all spheres of government. This position is mirrored in Mitu-Bell. The right to housing is a fundamental socio- economic right that requires concerted eort from all levels of government to realize. Applying the foregoing principles to the Act, 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. The provisions of the Act are consistent with the constitutional edict that housing is a shared function. The respondents who oppose the appeal correctly submit that the Act forties cooperative governance and aligns seamlessly with Articles 6(2), 185(2), 186(1) and 187(2) of the Constitution and Part 1, Clause 20 and Part 2, Clause 8(d) of the same Constitution. The Act provides for the functions of county governments in the implementation of the aordable housing program through sections 34, 38, 39, and 40. These provisions establish county rural and urban aordable housing committees which are tasked with developing frameworks for attainment of aordable housing in the counties, advising governors on aordable housing programmes, and developing ve-year aordable housing investment programmes for the counties. 117. We therefore hold that the scheme of the Act works well towards the promotion of the complementarity of functions and interdependence intended by Article 6(2) and the Fourth Schedule. Thus, in Senate & 2 others v Council of County Governors & 8 others (supra), appreciated this aspect of complementarity and cooperation between the two levels of government as follows: “ We do not see any merit in the argument that by mere participation of members of parliament in the Boards, the doctrine of separation of powers is breached. No merit because the Constitution itself decrees that the governments at the national and county levels must conduct their mutual relations on the basis of “consultation and cooperation”; https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1821/eng@2026-09-25 39

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that the two levels of government must co-operate in the performance of their functions and in the exercise of their powers and, that “for that purpose, they may set up joint committees and joint authorities”; and “that the form and manner of consultation between the national government and county governments” in the process of preparing plans and budgets shall be prescribed by national legislation. These are express provisions of articles 6(2), 189(2) and 220(2)(c) of the Constitution…we stress that the engagement, consultation, cooperation and coordination envisaged must be done “in a manner that respects the functional and institutional integrity,…. the Constitutional status and institutions of the county government”, as decreed by article 189(1) of the Constitution.” 118. The appellants also contended that the Act violates the constitutional principle of interdependence in that the national government and the Parliament did not consult the county governments before the commencement of the housing project. Based on the material placed before us, we are unable to make a denite nding on this issue since we had no representation from the county governments on the issue. 119. As regards the composition of the Board, section 16(3) of the Act states that: 3) 120. The Board shall consist of the following— a. a non-executive Chairperson appointed by the President; b. the Principal Secretary to the National Treasury or their representative designated in writing; c. the Principal Secretary of the State Department for the time being responsible for matters relating to aordable housing or their representative designated in writing d. three other persons who shall be appointed by the Cabinet Secretary, of whom— i. one shall be a nominee of the Council of County Governors; ii. one shall be a nominee of the Central Organization of Trade Union; and iii. one shall be a nominee of the Federation of Kenya Employers; e. three persons, not being public ocers, appointed, through a competitive process, by the Cabinet Secretary and who shall possess qualications in built environment, nance or law; and f. the Chief Executive Ocer, who shall have no right to vote at a meeting of the Board. 4) In nominating a person to be a member under subsection (3)(d), the nominating bodies shall present the names of three persons to the Cabinet Secretary from amongst whom one shall be appointed. 5) In appointing the members of the Board, the Cabinet Secretary shall— a. ensure that not more than two-thirds of the members are of the same gender; b. take into account regional balance; c. consider special and marginalized groups including youth, women and persons with disability. While the appointees in (a), (b) and (c) are national government appointees, the appointees in (d) and (e), who total six in number, are not direct national government appointees but are nominees of the county governments, the workers’ organisation, the organisation representing the employers, and https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1821/eng@2026-09-25 40

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experts in built environment, nance or law. The Act expressly states that the said experts are to be appointed through a completive process. The Act also takes into account gender and regional balance as well as special and marginalised groups. While we note that the county governments’ representation in the Board ought to reect the shared responsibility we have discussed above, we do not agree that the composition of the Board violates the constitutional principles as contended by the appellants. We however, recommend that the national government engages with the Council of Governors with a view to enhancing county governments’ representation to the Board. 121. The 3rd issue raised by the appellants was whether the Act violated their rights under Article 27 of the Constitution as regards equality and freedom from discrimination. In this regard, it was submitted: that as opposed to those in formal employment, there is no clear roadmap on how people in the informal sector will pay this levy; that the Act discriminates against the contributor as against the beneciary, where the contributor pays money, while the beneciary purchases a housing unit; that despite both individuals and corporations being required to make contributions, when it comes to who qualies for allocation, the Act discriminates against corporations; that sections 48 and 49(2)(d) of the Act, by requiring tax compliance introduces a classication that is not a consideration at the point of levying the tax. According to the appellants, the Act makes it mandatory for everyone (both tax/ regulation-compliant and non-tax/regulation-compliant people) to pay the levy, but during allocation of units, the Act purports to discriminate between these people into tax/regulation-compliant, vis-avis non-tax/regulation-compliant groups, without rational justication contrary to Article 24 of the Constitution. 122. As regards the test to be applied in determining whether an Act is discriminatory, reliance was placed on the case of Masai Mara (SOPA) Limited v Narok County Government [2016] eKLR, in which the case of Waweru v Republic [2006] eKLR was cited. The appellants also cited the South African Constitutional Court decision of Harksen v Lane No [1998] 1 SA 300 in which the tests were identied. According to the appellants, the dierential treatment of classes of citizens is not only discriminatory, irrational, and arbitrary but is also unconstitutional. 123. The 1st, 2nd and 3rd respondents’ position on this issue was: that the contention that the Act only targets those in formal settlements is without any basis since, as correctly found by the High Court, whereas tax collection in the informal sector may pose diculties to the Kenya Revenue Authority (KRA), the Kenyan system of self- assessment is provided for under Section 52B of the Income Tax Act, where taxpayers assess themselves and make payments to the KRA; that dierentiated treatment of various taxpayers does not amount to discrimination, since, as held in by this Court in Mohammed Abduba Dida v Debate Media Limited & another [2018] eKLR, in which the decision of the Supreme Court of India in of Kedar Nath v State of WB (1953) SCR 835 (843) was cited, mere dierentia or inequality of treatment does not per se amount to discrimination within the equal protection clause; that further as appreciated by the Supreme Court in British American Tobacco Kenya, Plc (formerly British American Tobacco Kenya Limited v Cabinet Secretary for the Ministry of Health & others [2018] eKLR, not all forms of discrimination are unfair. 124. The said respondents submitted: that the appellants have not shown that the dierentiation in the mode of collection between Kenyans in informal sectors vis-à-vis those in formal employment is arbitrary, unreasonable and without any rational justication; that the Act is not discriminatory since section 4 of the Act requires employees to pay the levy in the manner described under the Act; and that the High Court correctly observed that the denition of an employee under the Act, as read together with the Employment Act, extends to persons employed for wages or a salary and includes an apprentice and indentured learner. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1821/eng@2026-09-25 41

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125. On their part, the 4th and 7th respondents contended that whereas the principles of public nance and taxation provide, among others, that the burden of taxation is to be shared equally, in tax legislation, this principle does not mean that all persons must pay the same or equal taxes as opposed to fair and equitable taxes, based on the circumstances of each taxpayer. Citing the decisions in Okello & Another v National Assembly & 2 others; Shop & Deliver Limited t/a Betika & 7 others (Interested Parties); Kiragu & 2 others (Cross Appellant) (suing on behalf of, as the Chairperson, Secretary and Treasurer respectively of, the Association of Gaming Operators of Kenya) [2022] KEHC 3059 (KLR) and Federation of Women Lawyers Kenya (FIDA-K) & 5 others v Attorney General & another [2011] eKLR, it was submitted that mere dierentiation or inequality of treatment does not per se amount to discrimination within the inhibition of the equal protection clause. According to these respondents, since section 4(2)(b) of the Act makes reference to other income that a person gets, and not necessarily a salary, that provision targets those in self-employment so that it is not discriminatory to the salaried employees only, thus the averment that salaried persons are treated dierently is misguided. 126. The 5th respondent took the view: that section 4 of the Act imposes the housing levy on all citizens, whether in formal or informal employment; that in imposing the housing levy on all citizens, Parliament, in accordance with its mandate pursuant to Article 209 of the Constitution, complied with the provisions of Article 201 of the Constitution, which requires that the burden of taxation shall be shared fairly and equitably; and hence the imposition of the housing levy does not amount to discrimination. 127. We have considered the foregoing submissions. Article 27 of the Constitution provides that: 1. Every person is equal before the law and has the right to equal protection and equal benet of the law. 2. Equality includes the full and equal enjoyment of all rights and fundamental freedoms. 3. Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres. 4. The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. 5. A person shall not discriminate directly or indirectly against another person on any of the grounds specied or contemplated in clause (4). 6. To give full eect to the realisation of the rights guaranteed under this Article, the State shall take legislative and other measures, including armative action programmes and policies designed to redress any disadvantage suered by individuals or groups because of past discrimination. 7. Any measure taken under clause (6) shall adequately provide for any benets to be on the basis of genuine need. 8. In addition to the measures contemplated in clause (6), the State shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1821/eng@2026-09-25 42

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128. Black’s Law Dictionary denes “discrimination” as follows: “ The eect of a law or established practice that confers privileges on a certain class or that denies privileges to a certain class because of race, age, sex, nationality, religion or handicap or dierential treatment especially a failure to treat all persons equally when no reasonable distinction can be found between those favoured and those not favoured.” 129. The starting point, in our view, should be as appreciated by the South African Constitutional Court in President of the Republic of South Africa v Hugo [1997] ZACC 4; 1997 (4) SA 1 (CC); 1997 (6) BCLR 708 (CC) (Hugo) at para 41 that: “ At the heart of the prohibition of unfair discrimination lies a recognition that the purpose of our new constitutional and democratic order is the establishment of a society in which all human beings will be accorded equal dignity and respect regardless of their membership of particular groups. The achievements of such a society in the context of our deeply inegalitarian past will not be easy, but that that is the goal of the Constitution should not be forgotten or overlooked…We need to develop a concept of unfair discrimination which recognizes that although a society which aords each human being equal treatment on the basis of equal worth and freedom is our goal, we cannot achieve that goal by insisting upon identical treatment in all circumstances before the goal is achieved. Each case, therefore will require a careful and thorough understanding of the impact of the discriminatory action upon the particular people concerned to determine whether its overall impact is one which furthers the constitutional goal of equality or not. A classication which is unfair in one context may not necessarily be unfair in dierent context.” 130. In Minister of Finance v Van Heerden [2004] ZACC 3; 2004 (6) SA 121 (CC); 2004 (11) BCLR 1125 (CC) (Van Heerden) para 27 it was held that: “ It is…incumbent on courts to scrutinise in each equality claim the situation of the complainants in society; their history and vulnerability; the history, nature and purpose of the discriminatory practice and whether it ameliorates or adds to group disadvantage in real life context, in order to determine its fairness or otherwise in the light of the values of our Constitution. In the assessment of fairness or otherwise a exible but ‘situationsensitive’ approach is indispensable because of shifting patterns of hurtful discrimination and stereotypical response in our evolving democratic society.” 131. At para 37 it was held that: “ When a measure is challenged as violating the equality provision, its defender may meet the claim by showing that the measure is contemplated by section 9(2) in that it promotes the achievement of equality and is designed to protect and advance persons disadvantaged by unfair discrimination. It seems to me that to determine whether a measure falls within section 9(2) the enquiry is threefold. The rst yardstick relates to whether the measure targets persons or categories of persons who have been disadvantaged by unfair discrimination; the second is whether the measure is designed to protect or advance such persons or categories of persons; and the third requirement is whether the measure promotes the achievement of equality.” https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1821/eng@2026-09-25 43

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132. The Indian Case of State of Bombay v F. N. Balsara 93 AIR 1951 SC 318 at p. 326, in which the following extract from Professor Willis’ Constitutional Law, 1st Ed. at 578 was cited, states that: “The guaranty of the equal protection of the laws means the protection of equal laws. It forbids class legislation, but does not forbid classication which rests upon reasonable grounds of distinction. It does not prohibit legislation, which is limited either in the objects to which it is directed or by the territory within which it is to operate. It merely requires that all persons subjected to such legislation shall be treated alike under like circumstances and conditions both in the privileges conferred & in the liabilities imposed.’ 133. As noted by Khanna J. in the Indian case of State of Kerala & another v N.M Thomas & others 1976 AIR 490, 1976 SCR (1) 906: “ The principle of equality does not mean that every law must have universal application for all persons who are not in nature, attainment or circumstances in the same position and the varying needs of dierent classes of persons requires special treatment. The legislature understands and appreciates the need of its own people that its laws are directed to the problems made manifest by experience and its discriminations are based upon adequate grounds. The rule of classication is not a natural and logical corollary of the rule of equality but the rule of dierentiation is inherent in the concept of equality. Equality means priority of treatment under parity of treatment under parity conditions. Equality does not connote absolute equality.” 134. This Court in the case of Rawal v Judicial Service Commission & another; Okoiti (Interested Party); International Commission of Jurists & another (Amicus Curiae) [2016] KECA 534 (KLR) similarly, expressed itself as follows: “ 98. We now turn to consider the appellant’s argument that the respondents violated her right to equality and freedom from discrimination under Article 27. In Andrews v Law Society of British Columbia [1989] 1 SCR 143, the Supreme Court of Canada explained the essence of discrimination as follows: ‘Discrimination is a distinction which, whether intentional or not (is) based on grounds relating to personal characteristics of the individual or group, (and) has eect which imposes disadvantages not imposed upon others or which withholds or limits access to advantages available to other members of society.’ 99. It cannot be gainsaid that dierential treatment per se does not in and of itself constitute a violation of the right to equality or the kind of discrimination prohibited by the Constitution. The dierential treatment must be based on the grounds prohibited by the Constitution and be devoid of any reasonable or rational basis. Judge Tanaka, of the International Court of Justice powerfully articulated the essence of equality in his dissenting opinion in the South West Africa Cases (www.icj-cij.org/docket/les/46/4945.pdf) as follows: ‘The most fundamental point in the equality principle is that all human beings as persons have an equal value in themselves, that they are the aim itself and not means for others, and that, therefore, slavery is denied. The idea of equality of men as persons and equal treatment as such is of a metaphysical nature. It underlies all modern, democratic and humanitarian law systems as a principle of natural law. This idea, however, does not exclude the dierent treatment of https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1821/eng@2026-09-25 44

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persons from the consideration of the dierences of factual circumstances such as sex, age, language, religion, economic condition, education, etc. To treat dierent matters equally in a mechanical way would be as unjust as to treat equal matters dierently. We know that law serves the concrete requirements of individual human beings and societies. If individuals dier one from another and societies also, their needs will be dierent, and accordingly, the content of law may not be identical. Hence is derived the relativity of law to individual circumstances...We can say accordingly that the principle of equality before the law does not mean the absolute equality, namely equal treatment of men without regard to individual, concrete circumstances, but it means the relative equality, namely the principle to treat equally what are equal and unequally what are unequal.’” 135. In determining whether there exists unjustied discrimination, the case of Jacques Charl Homann v South African Airways, CCT 17 of 2000 sets out three steps. The rst step in whether the provision under attack makes a dierentiation that bears a rational connection to a legitimate government purpose. If found that the dierentiation bears no such rational connection, there is a violation. If it bears such a rational connection, the second enquiry arises and that is whether the dierentiation amounts to unfair discrimination. If the dierentiation does not amount to unfair discrimination, the enquiry ends there and there is no violation. If the discrimination is found to be unfair, this will trigger the third enquiry, namely, whether it can be justied under the limitations provision. The limitations provision appears in Article 24 of the Constitution and clause (1) and (2) thereof provides that: 1) 2) A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including– a. the nature of the right or fundamental freedom; b. the importance of the purpose of the limitation; c. the nature and extent of the limitation; d. the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and e. the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose. Despite clause (1), a provision in legislation limiting a right or fundamental freedom— a. in the case of a provision enacted or amended on or after the eective date, is not valid unless the legislation specically expresses the intention to limit that right or fundamental freedom, and the nature and extent of the limitation; b. shall not be construed as limiting the right or fundamental freedom unless the provision is clear and specic about the right or freedom to be limited and the nature and extent of the limitation; and c. shall not limit the right or fundamental freedom so far as to derogate from its core or essential content. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1821/eng@2026-09-25 45

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136. Our rst task is, therefore, to determine whether the provisions of the Act under attack make a dierentiation that bears a rational connection to a legitimate government purpose. In this case, it true that the manner of taxation of those in informal sector may not be as straightforward as those in the formal sector. However, as stated by the respondents, the Kenyan system of self-assessment as provided for under section 52B of the Income Tax Act, oers an opportunity for taxpayers to assesses themselves and make payments to the KRA. As to how eective the system is with regard to those in informal sector, is beyond the scope of this judgement. We nd that the dierentiation between those in the two sectors, if any, bears a rational connection to the legitimate government purpose of providing accessible and aordable housing. 137. The next question is whether the dierentiation amounts to unfair discrimination. We are persuaded by this Court’s decision in Mohammed Abduba Dida v Debate Media Limited & another (supra), in which the Indian Supreme Court decision of Kedar Nath v State of W.B. (supra) was cited, for the holding that: “ Mere dierentia or inequality of treatment does not per se amount to discrimination within the inhibition of the equal protection clause. To attract the operation of the clause it is necessary to show that the selection or dierentiation is unreasonable or arbitrary; that it does not rest on any rational basis having regard to the object which the legislation has in view.” 138. Similarly, in the case of Federation of Women Lawyers Fida Kenya & 5 Others v Attorney General & another (supra) it was stated thus; “ In our view, mere dierentiation or inequality of treatment does not per se amount to discrimination within the prohibition of the equal protection clause. To attract the operation of the clause, it is necessary to show that the selection or dierentiation is unreasonable or arbitrary, that it does not rest on any basis having regard to the objective the legislature had in view or which the Constitution had in view. An equal protection is not violated if the exception which is made is required to be made by some other provisions of the Constitution. We think and state here that it is not possible to exhaust the circumstances or criteria which may aord a reasonable basis for classication in all cases.” 139. In our view, the implementation of the objective of the Act may entail armative action contemplated in Article 27(6) of the Constitution. Accordingly, we are not satised that the dierentiation in the manner of collecting the levy amounts to unfair discrimination. 140. The 4th issue is whether the use of public land for the development of aordable houses infringed on the functions of the National Land Commission. It was contended by the 1st to 5th appellants that it is illegal and unconstitutional to build houses on public land and sell the units to private entities. According to the said appellants, sections 41-45 of the Act, which permits the the Fund to be used for construction of aordable houses on public/community land for the purposes of being sold to private individuals, is unconstitutional in that: pursuant to Article 62(2) and (3) of the Constitution, all public land is held and managed and/or allocated by the National Land Commission (NLC); the Act does not appreciate the NLC’s power on allocation of land and process of land acquisition; the NLC was not involved or its views taken despite being a critical constitutional commission mandated to deal with public land management; no rationale and/or legal justication has been oered for building on public land and then selling the units to private individuals or companies (corporate); pursuant to Article 63 of the Constitution, all community land is held and managed by and in trust by the county government on behalf of the communities for which it is held; and that no rationale exist for evicting Kenyans from https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1821/eng@2026-09-25 46

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public land under the pretext of building aordable housing on the same and selling them to private individuals. 141. According to the said appellants, the Act does not explain whether the programme envisaged is aordable housing ownership or aordable rentals. They submitted that the Act, in sections 44, unconstitutionally purports to make contracts with private institutions to construct houses on public land and sell the same to private individuals/entities as provided at sections 48-49. According to them, the Act does not explain the role the NLC will play and the procedure to be used in identifying public land for the aordable housing projects. They complained that in the scheme of the Act, public land will be alienated and allocated to private individuals who will acquire the units constructed under this program without following the due process of converting public land into private land. The appellants asserted that Part V of the Act (sections 41-47) is unconstitutional for removing the NLC from the picture and replacing its constitutional role with a board created by the national government. 142. The 48th and 49th respondents supported this ground, and added: that since the allocation of these housing units depends on one’s ability to purchase, the Aordable Housing Program (the Program) will ultimately see public land being allocated only to private individuals who can aord to purchase the units; that the Court should take note of Article 249 of the Constitution, which safeguards the independence of the independent commissions as restated in the decisions in Judicial Service Commission v Speaker of the National Assembly and Others, and in Independent Policing Oversight Authority & 660 Others, [2014] eKLR and In the Matter of the National Land Commission [2015] eKLR which retraced the history behind the creation of the NLC; that Article 62 requires that public land be administered by the NLC which also has the power to sell or dispose of public land on behalf of the national and county governments, as appreciated in the Azimio La Umoja One Kenya Coalition Party case (supra) in which it was held that the court has a duty to protect the functional independence of constitutional commissions; and that the attempt by the legislature, through the Act, to claw back on the mandate of the NLC is unconstitutional. 143. In urging us to allow the appeals, the 48th and 49th respondents submitted that the learned Judges erred in law and in fact by failing to appreciate that the Act violates several constitutional principles such as the failure by Parliament, in enacting the Act, to involve and/or seek the views of the NLC, despite it being a critical constitutional commission mandated with the management of public land. 144. The 1st, 2nd and 3rd respondents submitted, that the contrary to the above positions: that the appellants’ argument that the use of public land for the Program for houses which will be privatised is unconstitutional is unsustainable since Article 66 of the Constitution gives the State the powers to regulate the use of any land, or any interest in or right over any land, in the interest of defence, public safety, public order, public morality, public health, or land use planning; that the argument by the petitioners that the NLC has failed to protect public land from aordable housing is untenable since the NLC was allowed to participate in the deliberations leading to the enactment of the Act, both in the National Assembly and the Senate; that section 41 of the Act recognizes the application of the Land Act in the utilization of public land; that the High Court therefore arrived at the correct conclusion when it held that, because section 41 of the Act provides for use of public land in accordance with the Land Act, there is no conict between the Act and the Constitution; and that the scheme of the Act accords well with the constitutional mandate of the NLC. 145. The 4th and 7th respondents, on their part, submitted that the Act safeguards the role of the NLC since section 41 of the Act anticipates its involvement, where necessary, if there is an issue involving transfer or any dealing in public land. According to them, the contrary argument by the appellants are premature since the section provides that the provisions of the Land Act shall apply to the Act. They submitted that the private contractors anticipated in the Act do not have ownership rights over the https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1821/eng@2026-09-25 47

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aordable housing units and that the contracts in question outline that the aordable housing units are constructed for the Board, which retains ownership of these units, thus the Board does not bypass the role of the NLC in any manner. The said respondents submitted that the Land Act provides for an elaborate process involving both levels of government through which the land for aordable housing is identied. 146. After considering the various submissions above, it is our view that the starting point in determining this issue is Article 62(2) and (3) of the Constitution which provides that: Public land shall vest in and be held by a county government in trust for the people resident in the county, and shall be administered on their behalf by the National Land Commission, if it is classied under— 147. a. clause (1) (a), (c), (d) or (e); and b. clause (1) (b), other than land held, used or occupied by a national State organ. 3. Public land classied under clause (1) (f) to (m) shall vest in and be held by the national government in trust for the people of Kenya and shall be administered on their behalf by the National Land Commission. It is clear from the foregoing that all public lands whether vested in the national government or county government are held in trust for the people of Kenya and are to be administered by the National Land Commission on behalf of the respective governments. Whereas a reading of Part V of the Act which deals with implementation of the aordable housing, does not reveal any express mention of the National Land Commission and its role thereunder, section 41(1) states that: The provisions of the Land Act shall, subject to subsection (2), apply to the allocation of public land for the implementation of the aordable housing scheme and development of institutional housing scheme. 148. Section 12 of the Land Act deals with allocation of public land. In that process, the NLC plays a central role. Subsection (1) of the section provides that: Whenever the national or county government is satised that it may be necessary to allocate the whole or part of a specic public land, the Cabinet Secretary or the County Executive Committee member responsible for matters relating to land shall submit a request to the Commission for the necessary action. 149. It is therefore clear that the allocation of public land for the implementation of the aordable housing scheme and development of institutional housing scheme is to be conducted in accordance with the provisions of the Land Act. Under that Act, it is explicit that a request must be submitted to the NLC whenever it becomes necessary that public land, whether wholly or in part, be allocated by the national or county government. It follows that the role of the NLC in the allocation of public land for the purposes of aordable housing scheme is paramount and the Act itself gives recognition. Any allocation of public land without the approval of the NLC will, accordingly, be unlawful. We cannot, however, make a determination that such eventuality is likely to occur in the scheme of the Act as to do so would be to arrive at a speculative decision. 150. Regarding the argument that the NLC was allowed to participate in the deliberations leading to the enactment of the Act, both in the National Assembly and the Senate, the respondents averred that the NLC was allowed to participate in the deliberations leading to the enactment of the Act, both in the https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1821/eng@2026-09-25 48

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National Assembly and the Senate. In light of that position and without further input on the issue by the petitioners, we are unable to nd for the petitioners on this issue. 151. The 5th issue raised by the appellants was whether there was adequate public participation in the process leading to the enactment of the Act. It was contended by the appellants that the respondents blatantly dismissed/disregarded the results of public participation, which rejected the housing levy/by the majority during public participation, hence rendering public participation a cosmetic procedure and a waste of public resources contrary to the provisions of Articles 10, 118, and 201 of the Constitution. The appellants contended that despite requesting Parliament, pursuant to Article 35(1) and (2) of the Constitution as read with section 8 of the Access to Information Act, to provide information on public participation, none was provided, contrary to the holding in Republic v Chief Licensing Ocer & another Ex Parte Tom Mboya Onyango (2017) eKLR. According to the appellants, there was no deliberate attempt to reach the common mwananchi by other means other than the print media, when the majority of Kenyans do not have access to the internet. According to the appellants, Parliament was only able to visit 19 counties out of 47 counties, essentially leaving 28 counties out of public participation; that nevertheless, according to a research by Trends and Insight Africa (TIFA), 7 out of 10 Kenyans rejected the housing levy. The appellants asserted that, as per Article 1 of the Constitution, a delegated authority cannot overrule the sovereign power of the people. The respondents, it was submitted, ought to have undertaken meaningful public participation (both qualitative and quantitative) as held by the Supreme Court in British American Tobacco Kenya, Plc (Formerly British American Tobacco Kenya Limited) v Cabinet Secretary for The Ministry of Health & 5 others [2019] eKLR; [2019] KESC 15 (KLR) (the BAT Case) in which the case of Robert N. Gakuru and Others v Governor Kiambu County and 3 others [2014] eKLR was cited to highlight the seriousness with which public participation should be undertaken. The appellants submitted that there was a blatant dismissal of the results of the public participation process carried out. 152. The 6th appellant submitted: that the people who are most likely to be aected by the Act were not involved in decision-making, and the entire process of its enactment was done in secrecy, unexplained urgency and forced timelines. In support of this submission, reference was made to Articles 10(1) and (2) and 118 of the Constitution and the case of Independent Electoral and Boundaries Commission (IEBC) vs National Super Alliance (NASA), Kenya & 6 Others [2017] KECA 436(KLR). 153. The position taken by the 1st, 2nd and 3rd respondents was that: public participation was conducted by the National Assembly when it carried out civic education in languages comprehensible to the Kenyan diverse communities in various locations before public participation was conducted; that newspaper advertisements were placed in the local daily newspapers with wide circulation, inviting Kenyans to submit their views on the Bill with a deadline of 28th December 2023; that key stakeholders were identied and invited to participate and make oral presentations before the Committee in sittings held at Parliament Buildings on 29th and 30th January 2024 and 6th and 7th February 2024; and that public hearings by key stakeholders were held on diverse dates across nineteen (19) counties including Narok, Kisii, Homa Bay, Vihiga, Uasin Gishu, Turkana, Baringo, Nakuru, Nyandarua, Machakos, Kirinyaga, Embu, Kiambu, Wajir, Tana River, Lamu, Kili, Mombasa and Nairobi City. 154. According to the said respondents, the High Court rightly considered the evidence of public participation that was adduced in the adavit of Charles Hinga in arriving at its determination. In their view, the appellants have not shown that the respondents did not meet the principles of public participation of reasonable notice and reasonable opportunity as established by the Supreme Court in the BAT Case. According to the respondents, the appellants’ argument that public participation should be considered cosmetic because some proposals were rejected or because reasons were not given for rejecting some of the proposals is untenable as the Supreme Court in The Cabinet Secretary for https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1821/eng@2026-09-25 49

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the National Treasury and Planning & 4 others v Okiya Omtatah Okoiti & 53 others [2024] eKLR held that there is no express obligation on Parliament to provide reasons for accepting or rejecting the views made during public participation. 155. The 5th respondent, on its part, submitted: that it facilitated public participation in accordance with the provisions of Article 10 and 118 of the Constitution and Standing Order 145 of the Senate Standing Orders; that a reasonable opportunity was aorded to the public to participate meaningfully in the legislative process, and the mere fact that certain people have not shared their views does not warrant the process to be nullied. It relied on the Supreme Court decision in BAT Case on the guiding principles of public participation. According to the 5th respondent, even after the National Assembly had heard the views of members of the public and industry stakeholders on the Bill, it was not precluded from eecting amendments to the Bill before passing it and the case of Pevan East Africa Limited & Another vs Chairman, Betting Control and Licensing Board & 7 Others [2018] KECA 332(KLR), was cited for the holding that amendments do not necessarily have to agree with the views expressed by the people who have been heard, so long as the views have been taken into account. 156. The 9th respondent’s submissions were: that it is well-established that public participation is not a rigid or uniform process, but one that admits of various forms depending on the circumstances as appreciated in the South African Constitutional Court case of Minister of Health and Another NO v New Clicks South Africa (Pty) Ltd and Others [2006] (2) SA 311 (CC); that public participation is qualitative in nature and must be assessed based on substance rather than numbers, as stated in the Constitutional Court of South Africa in Doctors for Life International v Speaker of the National Assembly [CCT 12/05] and in the cases of Robert Gakuru & Others v Governor Kiambu County & 3 Others [2014] eKLR, Commissioner for the Implementation of the Constitution v Parliament of Kenya & 5 Others [2013] eKLR, Legal Advice Centre & 2 Others v County Government of Mombasa & 4 Others [2018] eKLR and Pevans East Africa Limited & Another v Chairman, Betting Control and Licensing Board & 7 Others (supra). 157. We are mindful of the Supreme Court’s opinion in the BAT Case, in which Article 118 of the Constitution was cited, that while the legislative mandate is delegated to Parliament, it must facilitate public participation as the onus of ensuring public participation rests with it. In that decision, the Court cited the opinion Mutunga, CJ in In the Matter of the National Land Commission (Advisory Opinion Application 2 of 2014) [2015] KESC 3 (KLR), where he stated that: “ [320] In the entire history of constitution-making in Kenya, the participation of the people was a fundamental pillar. That is why it has been argued that the making of Kenya’s Constitution of 2010 is a story of ordinary citizens striving to overthrow, and succeeding in overthrowing the existing social order, and then dening a new social, economic, political, and cultural order for themselves. It is, indeed, a story of the rejection of 200 Parliamentary amendments by the Kenyan elite that sought to subvert the sovereign will of the Kenyan population. Public participation is, therefore, a major pillar, and bedrock of our democracy and good governance. It is the basis for changing the content of the State, envisioned by the Constitution, so that the citizens have a major voice and impact on the equitable distribution of political power and resources. With devolution being implemented under the Constitution, the participation of the people in governance will make the State, its organs and institutions accountable, thus making the country more progressive and stable. The role https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1821/eng@2026-09-25 50

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of the Courts, whose judicial authority is derived from the people of Kenya, is the indestructible delity to the value and principle of public participation.” 158. After citing several decisions, the Supreme Court in the BAT Case, expressed itself as follows: “ (96) From the foregoing analysis, we would like to underscore that public participation and consultation is a living constitutional principle that goes to the constitutional tenet of the sovereignty of the people. It is through public participation that the people continue to nd their sovereign place in the governance they have delegated to both the National and County Governments. Consequently, while Courts have pronounced themselves on this issue, in line with this Court’s mandate under Section 3 of the Supreme Court Act, we would like to delimit the following framework for public participation: Guiding Principles for public participation i. As a constitutional principle under Article 10(2) of the Constitution, public participation applies to all aspects of governance. ii. The public ocer and or entity charged with the performance of a particular duty bears the onus of ensuring and facilitating public participation. iii. The lack of a prescribed legal framework for public participation is no excuse for not conducting public participation; the onus is on the public entity to give eect to this constitutional principle using reasonable means. iv. Public participation must be real and not illusory. It is not a cosmetic or a public relations act. It is not a mere formality to be undertaken as a matter of course just to ‘fulll’ a constitutional requirement. There is need for both quantitative and qualitative components in public participation. v. Public participation is not an abstract notion; it must be purposive and meaningful. vi. Public participation must be accompanied by reasonable notice and reasonable opportunity. Reasonableness will be determined on a case to case basis. vii. Public participation is not necessarily a process consisting of oral hearings, written submissions can also be made. The fact that someone was not heard is not enough to annul the process. viii. Allegation of lack of public participation does not automatically vitiate the process. The allegations must be considered within the peculiar circumstances of each case: the mode, degree, scope and extent of public participation is to be determined on a case to case basis. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1821/eng@2026-09-25 51

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ix. 159. Components of meaningful public participation include the following: a. clarity of the subject matter for the public to understand; b. structures and processes (medium of engagement) of participation that are clear and simple; c. opportunity for balanced inuence from the public in general; d. commitment to the process; e. inclusive and eective representation; f. integrity and transparency of the process; g. capacity to engage on the part of the public, including that the public must be rst sensitized on the subject matter.” In this case two issues arise. First is that there was no adequate public participation and secondly, that the views collected which were overwhelmingly against the Bill that gave rise to the Act were not considered. Starting with the second issue, the appellants cited a research purportedly conducted by Trends and Insight Africa (TIFA), in submitting that 7 out of 10 Kenyans rejected the housing levy. Speaking for ourselves, we are unable to determine how authoritative this research is and how the entity that conducted the research arrived at its ndings. We cannot therefore nd, based on the evidence referred to, that the views of the public were overwhelmingly against the levy. In any case, as held in the case of Merafong Demarcation Forum and Others v President of the Republic of South Africa and Others CCT (41/07) 2008 ZACC 10: “ There is no authority for the proposition that the views expressed by the public are binding on the legislature if they are in direct conict with the policies of Government. Government certainly can be expected to be responsive to the needs and wishes of minorities or interest groups, but our constitutional system of government would not be able to function if the legislature were bound by these views. The public participation in the legislative process, which the Constitution envisages, is supposed to supplement and enhance the democratic nature of general elections and majority rule, not to conict with or even overrule or veto them.” 160. Regarding the rst issue, the 1st, 2nd and 3rd respondents admitted that public hearings by key stakeholders were held on diverse dates across nineteen (19) counties. We have considered the Report of the Joint Committee of the Departmental Committee of Finance and National Planning and Departmental Committee on Housing, Urban Planning and Public Works on the Aordable Housing Bill, 2023. It details the various stakeholders whose views were sought before the enactment of the Act. We appreciate that the principle of public participation does not require that all people be heard as opined by Sachs, J. in the South African Constitutional Court case of the Minister of Health v New Clicks South Africa (Pty) Ltd [2005] ZACC where he held that: “ The forms of facilitating an appropriate degree of participation in the law-making process are indeed capable of innite variation. What matters is that at the end of the day a reasonable https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1821/eng@2026-09-25 52

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opportunity is oered to members of the public and all interested parties to know about the issue and to have an adequate say. What amounts to a reasonable opportunity will depend on the circumstances of each case.” 161. As held in Land Access Movement of South Africa Association for Rural Development and others v Chairperson of the National Council of Provinces and others [20016] ZAACC 22: “ The standard to be applied in determining whether Parliament has met its obligation of facilitating public participation is one of reasonableness. The reasonableness of Parliament’s conduct depends on the peculiar circumstances and facts at issue. When determining the question whether Parliament’s conduct was reasonable, some deference should be paid to what Parliament considered appropriate in the circumstances, as the power to determine how participation in the legislative process will be facilitated rests upon Parliament. The Court must have regard to issues like time constraints and potential expense. It must also be alive to the importance of the legislation in question, and its impact on the public.” 162. However, in the opinion of Mutunga, CJ in In the Matter of the National Land Commission (supra), the decision in Robert N. Gakuru & Others v. Governor Kiambu County & 3 Others, [2014] eKLR was cited in which the essence of public participation was considered, in observing that: “ In my view public participation ought to be real and not illusory and ought not to be treated as a mere formality for the purposes of fullment of the Constitutional dictates. It is my view that it behooves the County Assemblies in enacting legislation to ensure that the spirit of public participation is attained both quantitatively and qualitatively. It is not just enough in my view to simply “tweet” messages as it were and leave it to those who care to scavenge for it. The County Assemblies ought to do whatever is reasonable to ensure that as many of their constituents in particular and the Kenyans in general are aware of the intention to pass legislation and where the legislation in question involves such important aspects as payment of taxes and levies, the duty is even more onerous. I hold that it is the duty of the County Assembly in such circumstances to exhort its constituents to participate in the process of the enactment of such legislation by making use of as many fora as possible such as churches, mosques, temples, public ‘barazas’ national and vernacular radio broadcasting stations and other avenues where the public are known to converge to disseminate information with respect to the intended action...” 163. The African Commission of People and Human Rights in Centre for Minority Development Kenya and Minority Right Group International on behalf of the Endorois Welfare Counsel v Kenya [2009] ACHPR decried “tokenism” in public participation by distinguishing between an empty ritual of participation and having the real power to aect the outcome of the intended action by public participation process. 164. Apart from receipt of oral views, it is also admitted that there were newspaper adverts inviting views from the public. As guided in the BAT Case, public participation is not necessarily a process consisting of oral hearings and that written submissions can also be made. Further that allegations of lack of public participation must be considered within the peculiar circumstances of each case: the mode, degree, scope and extent of public participation is to be determined on a case to case basis hence mere allegations of lack of public participation does not automatically vitiate the process. Considering the steps taken by Parliament, we are not satised that there was no adequate public participation in the process leading to the enactment of the Act. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1821/eng@2026-09-25 53

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165. The 6th issue raised by the appellants was whether the Act passes the test of clarity and certainty. It was contended that the Act violates the principle of legality and vagueness. According to the 1st to 5th appellants, every exercise of governmental power that aects the rights and interests of an individual must be shown to have a strictly legal pedigree and that the common principle underlying both vagueness and overbreadth is the requirement that laws must possess a minimum degree of certainty. In this regard, the said appellants cited the case of Potter v Minahan (1908) 7 CLR 27, where this principle was characterized as a standing prediction of parliamentary intent. The appellants submitted that section 4 of the Act imposes a housing levy on gross salary and gross income, but the term “gross income” is not dened, thus undermining the clarity and predictability required by taxation principles and conicts with constitutional standards. The said appellants contended that section 29 of the Act violates principles of vagueness and overbreadth by allowing the fund administrator to access any data they deem necessary for their functions under the Act. According to the appellants, this broad and vague provision grants unchecked discretion and fails to ensure that enforcement powers are subjected to scrutiny. 166. Opposing this ground, the 5th respondent contended that in determining whether an Act is vague or ambiguous, the courts are bound to give eect to the principles and purpose declared in the Act. In this case it was submitted that the purpose of section 4 of the Act is to impose a housing levy on all citizens so that the State can meet its constitutional duty to provide accessible and aordable housing. Reference was made to section 4(2)(b) of the Act, which gives clear guidelines on how the levy is to be collected from the citizens in informal employment. As for section 29 of the Act, the respondent submitted that it facilitates the administrator of the Fund to eciently and eectively perform the functions provided under section 26 of the Act. According to the respondent, the Act cannot violate the principle of legality and vagueness by virtue of lacking denitions, as the purpose and eect of the provisions of the Act is clear. Reliance was placed on the Supreme Court decision of Khalid & 16 Others v Attorney General & 2 Others [2019] KESC 93 (KLR), where the Supreme Court declined to hold that section 78(1) and (2) and 94(1) of the Penal Code are vague. 167. On its part, the 9th respondent submitted, while reiterating some of the submissions made by the 5th respondent, that the provisions are cast in clear, denite, and unambiguous terms. According to this respondent, the taxable base, being either gross salary or gross income, is clearly stated, the applicable rate of 1.5% is precisely dened, the payment timeline is specied to the exact working day and the collection and remittance procedure is explicitly tied to the Fund. The 9th respondent relied on the Supreme Court of Canada’s decision in Osborne v Canada (Treasury Board) [1991] 2 SCR 69, 1991 where the court held that the law is vague only if it is so imprecise as to be incapable of any meaningful interpretation or guidance. According to the respondent, the trial court rightly observed that the appellants raised various constitutional questions regarding the Act, but did not adduce sucient evidence or legal authority to sustain their claims and cited the case of Anarita Karimi Njeru v Republic (No.1) (1979) eKLR, where this Court observed that constitutional claims must be pleaded with precision, and the alleged violations must be clearly identied and substantiated. To the 9th respondent, the appellants failed to discharge the burden of proving that the Act is unconstitutional in substance and procedure and urged this Court not to interfere with the ndings of the trial court, as there exists no basis for doing so. 168. Sir Francis Bacon in A Treatise on Universal Justice quoted in Coquiellette pp 244 and 248, from Aphorism 8 and Aphorism 39 graphically states that: “ For if the trumpet give an uncertain sound, who shall prepare himself for the battle? So if the law give an uncertain sound, who shall prepare to obey it? It ought therefore to warn https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1821/eng@2026-09-25 54

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before it strikes...Let there be no authority to shed blood; nor let sentence be pronounced in any court upon cases, except according to a known law and certain law...Nor should a man be deprived of his life, who did not rst know that he was risking it.” 169. In Grayned v City of Rockford [1972] 408 US 104, the United States Supreme Court identied: “ a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly dened. Vagueness oends several important rules...A vague law impermissibly delegates basic policy matters to policemen, judges and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” 170. Therefore, elementary justice or the need for legal certainty demands that rules by which the citizen is to be bound should be ascertainable by reference to identiable sources that are publicly accessible. In criminal matters or matters that impose quasi-penal consequences, as in this case, it is important to have clarity and certainty. It is therefore clear under the principle of legality, two principles emerge: no one should be punished under a law unless it is suciently clear and certain to enable him to know what conduct is forbidden before he does it; and no one should be punished for any act which was not clearly ascertainably punishable when the act was done. 171. Section 4 of the Act provides that: 1. There is imposed a levy known as the aordable housing levy. 2. The Levy shall be at the rate of one point ve percent of— 3. 172. a. the gross salary of an employee; or b. the gross income of a person received or accrued which is not subject to the Levy under paragraph (a). The Levy shall be payable to the collector, for remittance into the Fund, not later than the ninth working day after the end of the month in which the gross salary was due or gross income was received or accrued. As regards section, 29 of the Act, it provides that: The administrator of the Fund may access any programme and project related data that the Administrator considers necessary for the performance of their functions under this Act. 173. The appellants take issue with the terms “gross income” and “any programme and project data that the Administrator considers necessary for the performance of their functions under the Act” which in their view are vague and uncertain. It is true that the Act does not dene the term “gross income”. However, it is not alleged that the term is incapable of being understood by those to whom it applies. As regards section 29, it is clear that the programme and project related data is only those which are necessary for the performance by the Administrator of their functions. As stated in Osborne v Canada (Treasury Board) (supra), the law is vague only if it is so imprecise as to be incapable of any meaningful interpretation or guidance. We are not satised 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. 174. The 7th issue taken by the appellants was whether section 60 of the Act was unconstitutional for retrospectivity. The appellants contended that the Act, in section 60, violates the principle against retroactivity of statutes and violates both the spirit and text of the Constitution, including Articles 1, 2, 10 and 159 thereof. According to the appellants, the attempted retroactive application of the https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1821/eng@2026-09-25 55

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section upsets the Lex prospicit non respicit principle- the law looks forward, not backward, that laws are generally deemed or presumed not to have retroactive eect. Reliance was placed on the Supreme Court of India’s decision in Bombay Steam Navigation Co. (1953) v Commissioner of Income-Tax, Bombay 1965 AIR 1201, 1965 SCR (1) 770, AIR 1965 Supreme Court 1201 on the proposition that every taxpayer has the right to certainty as to the taxes payable by him and that the taxes due are not arbitrarily determined and that the retrospective eect of legislation or amendments to legislation must still be subject to the safeguards in the Bill of Rights. 175. The 6th appellant, through Mr Kipkoech, submitted: that the laws do not apply retrospectively unless by express implication, as held by the Supreme Court in Samwel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR; that section 60 of the Act provides for retrospective application of the Act regarding any payments made, any commitments and obligations of the national government on aordable housing, and any ongoing projects or programmes which have to be deemed as though they have all been done under the Act; that this Court should declare the Act unconstitutional as the process of enacting it was heavily marred with illegalities and irregularities, and the government should be prohibited from applying the Act and be compelled to refund the already collected amounts of the respective employers and employees; that, further, the national government should hand over to the county governments the already constructed housing units within their respective counties for them to exercise their functions; and that, on the authority of the case of Gatirau Peter Munya v Dickson Mwenda Kithiji & 2 Others [2014] eKLR, and from the pleadings, evidence, and submissions in the High Court and in this appeal, the appellants have discharged the burden of proof to the required standard. 176. According to the 5th respondent section 60 of the Act does not violate the principles of non-retroactive application of a statute and it relied on the case of Macharia & Another v Kenya Commercial Bank Limited & 2 Others (Application No. 2 of 2011) [2012] KESC 8 (KLR) and Commissioner of Income Tax v Pan African Paper Mills (EA) Limited [2018] KECA 585 (KLR) while submitting that the Act was enacted in line with the pronouncement in High Court’s decision in Constitutional Petition No. E181 of 2023 consolidated with E211 of 2023, E217 of 2023, E219 of 2023, E221 od 2023, E227 of 2023, E228 of 2023, E232 of 2023, E234 of2023, E237 of 2023 and E254 of 2023 - Okiya Omtatah Okoiti and 6 Others v Cabinet Secretary for National Treasury and Others which held the Housing Levy introduced through section 84 of the Finance Act lacked a comprehensive legal framework. According to the 5th respondent, this Court in National Assembly & Another v Okoiti & 55 Others [2024] KECA 876(KLR) declined to grant a refund of the levy collected under section 84 of the Finance Act on the grounds that it was not pleaded in the petition before the High Court and that, in terms of Article 165(3) of the Constitution, legislative enactments enjoy presumption of constitutionality up to the moment they are found to be unconstitutional. 177. According to the respondent, the import of section 60 of the Act is therefore to preserve the levy that had been collected under section 84 of the Finance Act before the determination of the High Court in Constitutional Petition No.181 of 2023. The said respondent submitted that it was therefore the intention of Parliament to have the provision apply retrospectively and for purposes of preserving the levies collected at the time section 84 of the Finance Act, 2023 was in operation. 178. Section 60(2)(3) and (4) of the Act provides as follows: 2) Any payment made or action taken under the sections repealed under subsection (1) shall be deemed to have been paid or taken under this Act. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1821/eng@2026-09-25 56

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179. 3) Any commitment or obligation on the National government on aordable housing which have arisen or made in accordance with an Act of Parliament shall be deemed to be a commitment or obligation made under this Act. 4) Any ongoing project or programme on aordable housing implemented pursuant to a commitment or obligation under subsection (3) shall be deemed to be a project or programme commenced under this Act. It is clear that the intention of section 60 is to apply the provisions of the Act to payment made or action, commitment or obligation on the national government on aordable housing and ongoing project or programme on aordable housing made pursuant to the Finance Act, 2023. It is a principle of law that unless a contrary intention appears, an enactment is presumed not to be intended to have retrospective intention as appears in Statutory Interpretation by Francis Benion (4th Edition) where it is stated that: “ The essential idea of a legal system is that current law should govern current activities. Elsewhere in this work a particular Act is likened to a oodlight switched on or o, and the general body of law to the circumambient air. Clumsy though these images are, they show the inappropriateness of retrospective laws. If we do something today, we feel that the law applying to it should be the law in force today, not tomorrow’s backward adjustment of it. Such, we believe, is the nature of the law…those who have arranged their aair…in reliance on a decision which has stood for many years should not nd that their plans have been retrospectively upset.” 180. Similarly, in the decision of the Supreme Court of Kenya in Samuel K Macharia v Kenya Commercial Bank Limited and Others (supra) it was held, at paragraph 61, that: “ As for non-criminal legislation, the general rule is that all statutes other than those which are merely declaratory or which relate only to matters of procedure or evidence are prima facie prospective and retrospective eect is not to be given to them unless by express words or necessary implication, it appears that this was the intention of the legislature.” 181. In Municipality of Mombasa v Nyali Limited (1963) E.A 371, Newbold, JA stated thus: “ Whether or not legislation operate retrospectively depends on the intention of the enacting body as manifested by the legislation. In seeking to ascertain the intention behind the legislation, the courts are guided by certain rules of construction. One of these rules is that if the legislation aects the substantive rights, it will not be construed to have retrospective operation unless a clear intention to that eect is manifested; whereas if it aects procedure only, prima facie it operates retrospectively unless there is a good reason to the contrary. But in the last resort it is the intention behind the legislation which has to be ascertained and the rule of construction is only one of the factors to which regard must be had in order to ascertain that intention.” 182. The foregoing view was approved in the case of Samuel K Macharia v Kenya Commercial Bank Limited and Others (supra) where the Supreme Court stated that: “ A retroactive law is not unconstitutional unless it, inter-alia, impairs obligations under contracts, divests rights or is constitutionally forbidden. Cited in Overseas Private Investment Corporation & Others vs. Attorney General & Another Petition 319 of 2012 https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1821/eng@2026-09-25 57

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to buttress this, in Kenya Bankers Association & Others vs. Minister of Finance & Another (2002) 1 KLR 61, the Court noted that a statute which takes away or impairs vested rights acquired under existing laws, or creates new obligations or imposes a new duty in respect of transaction already past, must be presumed to be intended not to have retrospective operation.” 183. In this case, it is clear from section 60 of the Act that Parliament intended to apply the provisions of the Act retrospectively. We have not been told that the eect of the retrospective application of the Act will be to impair obligations under contracts, divest rights or is constitutionally forbidden. We agree with the learned Judges of the High Court that section 60 of the Act was intended by Parliament to have a retrospective eect in order to preserve the transactions that had taken place under section 84 of the Finance Act 2023 prior to the determination of Petition 181 of 2023. 184. The 8th issue was whether the Act was unconstitutional for failure by the Commission on Revenue Allocation to consider the Bill as per Article 205(1). It was contended that the Act is unconstitutional as the Commission on Revenue Allocation (CRA) did not advise the National Assembly and the Senate on the provisions of the statute contrary to Article 205 of the Constitution. 185. In opposition to this ground of appeal, the 1st, 2nd, and 3rd respondents submitted that, the contention is based on the misapprehension that the Act included provisions dealing with the sharing of revenue or any nancial matter concerning county governments. Referring to Articles 205 and 216(2) of the Constitution, the said respondents asserted that the Act does not contain provisions related to revenue sharing, nancing of or nancial management by county governments that require consideration by the CRA. According to them, pursuant to section 8 of the Act, the administration of the Fund is by the CEO of the Board and not the county governments, thus the High Court arrived at the correct conclusion when it held that the Act does not allocate a specic portion of the fund or amount of the levy collected under it to the county governments. The respondents urged this Court to uphold the High Court’s nding that the failure by CRA to make recommendations in respect of the Act does not render the Act unconstitutional. 186. Article 205 of the Constitution provides that: 187. 1. When a Bill that includes provisions dealing with the sharing of revenue, or any nancial matter concerning county governments is published, the Commission on Revenue Allocation shall consider those provisions and may make recommendations to the National Assembly and the Senate. 2. Any recommendations made by the Commission shall be tabled in Parliament, and each House shall consider the recommendations before voting on the Bill. Although the respondents’ position was that the Act does not contain provisions related to revenue sharing, nancing of, or nancial management by county governments that require consideration by the CRA, it is clear that the Act envisages the collection of funds through the Fund. Under section 9 of the Act, part of the money that constitute Fund established under section 8 thereof are monies deducted or payable as the levy under the Act from the public, income from investments made by the Fund and income accruing to the Fund in the course of the performance of its functions under any written law. Under section 11(3) of the Act, the Fund may be allocated to county governments in accordance with the Public Finance Management Act and on such conditions as may be prescribed by the Cabinet Secretary for the time being responsible for the National Treasury. Since the Constitution, in Article 205, requires that when a Bill includes any nancial matter concerning county governments is published, the Commission on Revenue Allocation shall consider those provisions and may make https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1821/eng@2026-09-25 58

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recommendations to the National Assembly and the Senate, in light of our ndings regarding the role of county governments in aordable housing project as well as the above cited provisions, we nd that the opportunity ought to have been given to the CRA to consider the Bill and make recommendations to the National Assembly and the Senate which recommendations ought to have been considered before voting. 188. The trial court seemed to have appreciated this but was of the view that the role of the CRA would only come into play after the formulation but before implementation of the annual investment programme by the Board for approval by Parliament in the manner set out in section 15 of the Act. With due respect, 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. Article 216(1) of the Constitution which sets out the function of the CRA provides that: The principal function of the Commission on Revenue Allocation is to make recommendations concerning the basis for the equitable sharing of revenue raised by the national government– (a) between the national and county governments; and (b) among the county governments. 189. Therefore, the role of the CRA must come prior to the formulation of the programme and not just at the implementation stage when the Bill has been passed as was held by the learned Judges. Our diculty in arriving at the determination of this matter is that the CRA was never made a party to the proceedings and hence its position as to whether or not this opportunity was aorded was not clearly brought out by the petitioners whose duty it was to prove this assertion. 190. The last issue taken was whether the appointment of the Commissioner General of Kenya Revenue Authority as collector of the levy was in accordance with the Constitution. We have considered the submissions made and we agree with the respondents that since section 5 of the Kenya Revenue Authority Act as amended provide that the Kenya Revenue Authority is an agent of the government for purposes of the collection and receipt of all revenue and section 11 of the said Act provides that one of the functions of the Commissioner General is the management of funds, property and aairs of the Authority, that appointment cannot be faulted. Disposition 191. Having considered the submissions made, we nd 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. DATED AND DELIVERED AT NAIROBI THIS 25TH DAY OF SEPTEMBER, 2026. W. KARANJA ..................... JUDGE OF APPEAL P. O. KIAGE ..................... JUDGE OF APPEAL A. O. MUCHELULE https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1821/eng@2026-09-25 59

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..................... JUDGE OF APPEAL W. KORIR ..................... JUDGE OF APPEAL G.V. ODUNGA ..................... JUDGE OF APPEAL I certify that this is the true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1821/eng@2026-09-25 60

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