Human rights organizations and the Law Society of Kenya (LSK) are poised to contest the recent High Court ruling permitting the government to persist in levying an unconstitutional housing tax.
The high court of Kenya declared the housing levy unconstitutional but stayed orders for the government to continue collecting the controversial tax until January 2024, when the case will be heard.
Joining the fray after the Cabinet and Parliament lodged their own appeal, this coalition—comprising the Kenya Human Rights Commission (KHRC), Katiba Institute, International Commission of Jurists, and the Institute for Social Accountability is preparing to present a joint case at the Court of Appeal.
Their planned appeal targets multiple facets of the High Court judgment including contesting the High Court’s stance on jurisdictional limits regarding the scrutiny of tax-induced hardships, contrary to stipulations for social justice and fairness outlined in Articles 10, 27, and 201.
In their suit, they have criticized the High Court’s finding that public participation in the Finance Act 2023 was adequate, despite evidence suggesting otherwise. They have also highlighted the obligation of public agencies to consider and demonstrate their responsiveness to received views.
The joint suit has also highlighted the High Court’s oversight of fundamental taxation principles such as fairness, and its allocation of absolute taxation power to the National Assembly and Executive, contrary to constitutional provisions.
Also questioned in the suit is the High Court’s denial of the Senate’s role in debating matters concerning counties within the Finance Act.
The joint suit is also questioning the issuance of an undue stay of execution on parts of an Act that was declared unconstitutional.
While speaking to the press, LSK President Eric Theuri conveyed the body’s intent to challenge the Executive and Legislature’s bid to reverse the housing tax ruling.
“All petitioners will vehemently oppose attempts to overturn the lower court’s verdict on the illegality of the Housing Levy. We will also seek the annulment of the controversial 45-day stay order issued by the lower court,” stated Theuri.
Simultaneously, several government agencies have filed a joint notice of Appeal against the High Court’s decision to declare the collection of housing levy unconstitutional.
The Treasury, National Planning Cabinet Secretary, Attorney General, Speakers of the National Assembly and Senate, and KRA Commissioner General have decided to contest specific sections of the judgment within the Finance Act 2023.
In this appeal, the government agencies seek to overturn designated sections that prohibit the collection of the affordable housing levy based on Section 84 of the Finance Act.
The parties however only have 14 days within which they have to lodge their appeals against the High Court’s decision, before subsequent scheduling for pre-trial proceedings.
