A Nakuru doctor has moved to the High Court seeking orders to temporarily suspend the commencement, levying, obligations, operationalisation and effecting of the Affordable Housing Act, 2023.
In a petition filed on Tuesday, Magare Gikenyi argued that there is no justification as provided by the Act to limit the enjoyment of rights to individuals.
He said the Act has failed to appreciate that some Kenyans "wameshajipanga na housing".
This is including the place of the building, the style, design and mode of payment among others, adding that there is no rational need to force all Kenyans to pay the levy just for the others.
He further argued that the Affordable Housing Act tries to introduce "communist ideologies", where the constitution does not allow the government to introduce such.
"Kenya is not a communist state and the constitution does not envisage it," he said.
Gikenyi went on to state that it was unconstitutional that the Act purports to use public land pursuant to the Land Act, 2012 and sell the housing unit to a private individual or corporate.
Backing up his claim, he cited Article 62(2) and (3) of the Constitution, that all public land is held and managed and/or allocated by the National Land Commission(NLC) and not any other body.
"The Act does not give NLC on allocation of land and the process of processing of land acquisition," he added.
He emphasised that the procedure for the sale of public land whether with or without housing units in it, is governed by constitutional provisions and as such an Act of Parliament cannot purport to oust the said provisions.
Further, he told the court that the respondents in the suit had not given the rationale and legality of building on public land and then selling the same to private individuals or private companies (corporate).
The respondents include the Cabinet Secretaries for Lands and Treasury, the Attorney General, The National Assembly and the Senate.
Gikenyi faulted them for "the blatant dismissal of the results of the public participation process", saying they impose a levy which the majority of Kenyans are opposed to.
He cited the TIFA report released in December 2023.
He also argued that the levy has been established with a faulty legal framework and structures for implementation, making its application a matter for the executive’s discretion.
He said this, therefore, makes it susceptible to abuse in violation of the principles of public finance.
The doctor also claimed that the fund has been established without any basis in law, "essentially making it a private fund that is being funded by public resources".
He raised concerns about the lack of guarantees to contributors of benefits and there being very low penalties for stealing from the fund.
"For all practical purposes, the fund subjects employees and other income earners to cruel, inhuman and degrading treatment, which is tantamount to servitude," he said.
He also faulted the Parliament for failing to uphold the Constitution as required by the law and failing to over-sight and protect Kenyans against excessive and illegal taxation.
Gikenyi told the court that the action of the respondents would lead to a loss of public confidence and outright abuse of political power to the detriment of many Kenyans.
He noted the importance of maintaining constitutionalism, the rule of law, Law and Order, good governance, non-discrimination and protection of the Constitution.
He also sought orders prohibiting the respondents from evicting Kenyans from public land ostensibly for purposes of the Affordable Housing Act pending the hearing and determination of the suit.
Gikenyi urged that the matter be placed before a judge and the orders issued to preserve and safeguard public interests.
The Act was passed by the National Assembly with amendments on February 21, and by the Senate on March 12, 2024.
It was then assented into law by President William Ruto on Tuesday, March 19.