The High Court in Nairobi has ruled that two presidential directives on affordable housing unit allocation are unlawful and of no legal force. The directives, issued on June 3, 2025, and September 13, 2025, sought to set aside 20% of affordable housing units exclusively for teachers and police officers. The court found that these pronouncements are not legally binding and cannot alter or supplement the criteria for allocation of housing units established under the Affordable Housing Act and its Regulations.
The ruling was delivered by Justice Nyaundi Patricia Mande on October 29, 2026, at the Milimani High Court in Case No. HCCHRPET/E614/2025. The petition was filed by John Maina Ndegwa and Marshalls Tito Ongoya against the State Law Office, the Kenya National Union of Teachers (KNUT) Nairobi Branch, and other parties. The petitioners argued that the constitutional right to housing applies equally to all Kenyans and that no professional group can be granted priority access to public housing units without a lawful statutory basis.
The court acknowledged the Executive's role in implementing legislation but emphasized that the Executive cannot create rights or preferences outside the existing legal framework. The judgment stated that permitting executive fiat to prevail over a statutory framework enacted pursuant to the Constitution would be fundamentally incompatible with the rule of law. The respondents and interested parties conceded during proceedings that the presidential pronouncements carried no legal weight, given that a statute already governs how housing units are allocated.
The Affordable Housing Programme is one of the government's flagship economic initiatives, supported by public-private partnerships and significant private sector financing. The programme's allocation criteria had been uncertain due to the presidential directives, which could have unsettled developers, institutional investors, and lenders participating in the programme. With the court reaffirming that Parliament's statutory framework exclusively governs allocation, investors can expect a more predictable and transparent regulatory environment.
The ruling effectively closes the door on ad hoc executive preferences that could otherwise undermine confidence in the programme's governance. The court declined to award costs to either side, noting that the petition was filed and argued in the public interest. The judgment reinforces the supremacy of the Affordable Housing Act and its regulations, ensuring that access to publicly funded housing remains guided by constitutional principles of equality and transparency rather than executive discretion.
The implications of the ruling are significant, as it ensures that the allocation of affordable housing units is fair and transparent. The court's decision will provide clarity to investors and stakeholders in the programme, allowing them to make informed decisions. The ruling also underscores the importance of the rule of law in ensuring that government actions are lawful and constitutional.
The court's decision is a significant milestone in the implementation of the Affordable Housing Programme. The programme aims to provide affordable housing to Kenyans, and the court's ruling ensures that the allocation of housing units is done in a fair and transparent manner. The ruling also highlights the importance of the judiciary in checking the excesses of the Executive and ensuring that government actions are lawful and constitutional.
Key points
- The Kenyan High Court has nullified two presidential directives allocating 20% of affordable housing units to teachers and police officers.
- The court's ruling ensures that the allocation of affordable housing units is fair and transparent, guided by the Affordable Housing Act and its regulations.
- The judgment reinforces the supremacy of the Affordable Housing Act and its regulations, ensuring that access to publicly funded housing remains guided by constitutional principles of equality and transparency.
