A Nakuru-based surgeon and three co-petitioners have moved to the Supreme Court seeking to overturn lower court rulings that upheld Kenya’s Affordable Housing Act and its mandatory 1.5 per cent housing levy, arguing the scheme remains unconstitutional.
Dr Magare Gikenyi, a consultant surgeon known for public interest litigation, is among those challenging the government’s flagship programme.
The move comes weeks after the Court of Appeal, on 25 September 2026, dismissed consolidated appeals and affirmed the High Court’s earlier decision that the Affordable Housing Act, 2024, is constitutionally valid.
The petitioners contend that the mandatory salary deductions violate the right to property under Article 40 of the Constitution.
They argue that earnings constitute private property acquired through labour, and compelling workers to surrender a portion without any assurance of receiving a housing unit amounts to an unjust taking.
Formal employees and their employers each contribute 1.5 per cent of gross monthly salary, yet many contributors already own homes, service mortgages, or simply have no desire for the units on offer.
Critics say the arrangement effectively forces one group of citizens to subsidise housing for others in a manner that offends principles of fairness and equality.
Gikenyi has previously framed the policy as introducing elements alien to Kenya’s constitutional and economic order.
He has maintained that while the need for more housing is undisputed, the method of implementation is flawed.
The Act, he and fellow petitioners argue, fails to cater adequately for the poorest Kenyans who lack the means to make deposits or meet eligibility criteria, while simultaneously locking formal workers into compulsory contributions.
Restrictions on the resale or transfer of completed units without board consent have also been cited as unjustified limits on ownership rights once a purchaser has paid in full.
The legal battle has been long-running. Multiple petitions were filed soon after the Act was signed into law in March 2024.
A three-judge High Court bench dismissed the challenges in October 2024, finding that the legislation advanced the State’s obligation under Article 43 to progressively realise the right to accessible and adequate housing.
The Court of Appeal later endorsed that view, holding that the levy is a lawful tax measure under Parliament’s powers and that the right to housing does not equate to an individual entitlement to home ownership.
The appellate judges acknowledged that the scheme does not fully reach those with no income, yet declined to strike down the law on that basis.
Supporters of the programme point to the scale of Kenya’s housing deficit and the government’s efforts to construct units across the country.
They argue that progressive realisation of socio-economic rights necessarily involves hard policy choices and that the courts should not second-guess the elected branches on the design of such programmes.
Opponents counter that a measure which extracts resources from workers while leaving the most vulnerable outside its reach cannot be said to fulfil the constitutional promise.
The Supreme Court petition seeks declarations that key provisions of the Act, particularly those imposing the levy, are unconstitutional, orders stopping further collections by the Kenya Revenue Authority, and, in some related filings, refunds of amounts already deducted.
Whether the apex court will grant leave to appeal and how it will weigh the competing arguments of property rights, progressive realisation, and public interest will shape the future of one of the administration’s central economic initiatives.
The levy continues to be deducted and construction projects proceed, even as the constitutional contest moves to its final judicial stage.
The outcome will determine not only the fate of the housing levy but also the broader boundaries of how far the State may go in compelling citizens to fund collective social programmes.
Add Comment