The Court of Appeal Has Dismissed Government's New Affidavit in Ongoing Housing Levy Appeal.

The Court of Appeal on Monday dismissed an application by the government seeking to introduce a new affidavit sworn by Housing Principal Secretary Charles Hinga in the appeal concerning the affordable housing levy. The application aimed to place additional material before the court in support of the government's position that deductions under the levy should continue pending the full hearing of the appeal. The proposed affidavit was intended to address aspects of the government's case following the High Court's earlier ruling that found key provisions unconstitutional. 

The three-judge bench rejected the request after considering arguments from both sides. Petitioners, who include trade unions and individuals who challenged the levy in the High Court, opposed the introduction of the new evidence at this stage. They contended that it amounted to an attempt to reopen or supplement the record improperly.

The court's decision means the appeal will proceed without the additional affidavit from the Housing PS. The government had argued that the material was necessary to clarify implementation details and the effects of any suspension on ongoing housing projects and collections handled by the Kenya Revenue Authority.

The Court of Appeal had, in January 2024, declined to grant a stay of the High Court judgment, allowing the suspension of deductions to remain in place pending the substantive appeal. This latest procedural ruling adds to the challenges faced by the state in defending the policy.

The appeal consolidates several petitions and cross-appeals involving the National Assembly, Attorney General, and other parties. No new date for the substantive hearing was indicated in the ruling on the affidavit application. Lawyers for the petitioners welcomed the dismissal, arguing it preserves the integrity of the appellate process.

The government maintains that the levy is essential for addressing the housing deficit and has continued to push forward with related projects despite the legal hurdles.