The Court of Appeal in Kenya has delivered a ruling upholding the constitutionality of the Affordable Housing Act, a key piece of legislation supporting President William Ruto's flagship housing initiative. The decision, made on September 25, 2026, dismissed a series of consolidated appeals challenging the legislation, including cases associated with Busia Senator Okiya Omtatah. This ruling gives the government a stronger legal foundation to continue implementing the Affordable Housing Program.
The dispute over the Affordable Housing Program dates back to 2023, when the original Affordable Housing Levy was introduced through the Finance Act. The High Court subsequently declared the levy unconstitutional, finding that there was no comprehensive legal framework governing it and that imposing it on people in formal employment while excluding informal income earners was discriminatory. The government responded by introducing a standalone Affordable Housing Bill, which President Ruto assented to on March 19, 2024.
The new legislation created a framework for affordable and institutional housing and addressed concerns raised in the earlier litigation. However, the constitutionality of the new law was then challenged in a fresh set of petitions. Petitioners questioned several provisions of the Affordable Housing Act, including the 1.5 per cent housing levy, the administration of the Affordable Housing Fund, the role of the Kenya Revenue Authority in collecting the levy, and the use of public land for housing projects.
One of the key issues in the constitutional challenge was whether Kenyans had been given a meaningful opportunity to participate in the legislative process. The Judiciary's account of the earlier High Court litigation shows that petitioners had argued that public participation for the Affordable Housing Act was inadequate, including concerns over the geographical reach of the consultations. The Court of Appeal has now rejected the challenge to the legislative process, upholding the Act against the arguments advanced in the consolidated appeals.
The decision removes a major legal uncertainty surrounding the 1.5 per cent Affordable Housing Levy created under the 2024 legislation. The levy is separate from the provision that was struck down in the Finance Act. In 2024, the Supreme Court noted that the new Affordable Housing Act had been enacted specifically following the earlier High Court decision and that the concerns surrounding the original levy had consequently been addressed through the new legislation.
Despite this ruling, separate disputes continue to emerge over individual affordable housing developments and the use of public land. Litigation concerning the Southlands Affordable Housing Project in Lang'ata has raised questions about environmental approvals, land-use planning, public participation, and whether land historically reserved for public infrastructure could lawfully be used for housing. A 2026 Environment and Land Court petition over the project sought, among other orders, to stop construction until environmental, land-use, and public participation requirements were met.
The Court of Appeal's ruling is a significant victory for President Ruto's administration, which has made the Affordable Housing Program a key priority. The program aims to provide thousands of affordable housing units to Kenyans, and the government has been keen to demonstrate its commitment to addressing the country's housing shortage. The ruling will allow the government to proceed with the implementation of the program, including the collection of the levy and the development of housing projects.
Key points
- The Court of Appeal upholds the constitutionality of the Affordable Housing Act.
- The ruling allows President Ruto's flagship housing initiative to proceed.
- The decision removes a major legal uncertainty surrounding the 1.5 per cent Affordable Housing Levy.
