By Mercy Jebaibai*
"We find that the introduction of the Housing Levy amendment to Section 84 lacks a comprehensive legal framework in violation of Article 10 of the Constitution, that levy against persons in formal employment without justification is discriminatory and irrational,"[1]- Justice Majanja
In the hallowed halls of Kenya's judiciary, Justice David Majanja etched his name into legal history. His tenure was marked by unwavering commitment to justice, integrity, wisdom and transformative rulings. Among his landmark rulings, the housing levy case stands out as a defining moment in his illustrious career.[2] This case not only challenged the boundaries of constitutional law but also underscored the delicate balance between government policy and individual rights.[3]As the gavel fell, his legacy crystallised and reverberated beyond courtrooms, leaving an indelible mark on Kenya's legal landscape. In this article, I delve into the man behind the robe, the legal intricacies of this pivotal case and the enduring legacy he bequeathed.
Justice David Majanja, appointed to the high court in 2011,[4] carved out a distinguished career in the Kenyan judiciary. With a solid academic background from the University of Nairobi and the University of Pretoria, he quickly became a formidable mind.[5] His tenure on the bench saw him involved in high profile cases such as the housing levy case.[6] Could there be a more fitting legacy for a judge committed to justice and accountability?
Envision a levy designed to bridge Kenya's housing gap. The housing levy introduced under Section 84 of the Finance Act, 2023, aimed to fund the Affordable Housing Program[7] by collecting 1.5% from employees' salaries, matched by employers.[8] Yet, did it truly serve the public interest, or did it unfairly burden salaried employees while leaving the informal sector untouched? The levy aimed to generate billions for housing projects, but without a comprehensive legal framework could it be deemed rational and just?[9] The debate raged on and eventually landed in Justice Majanja's courtroom, setting the stage for a landmark ruling.[10]
In the heated courtroom, the petitioners passionately argued that the housing levy was blatantly discriminatory.[11] Also, unfairly targeting salaried employees while conveniently ignoring the informal sector. They claimed it violated the principles of public participation and transparency,[12]branding it as arbitrary. How could such a levy align with constitutional principles and national values?[13] On the other hand, the government staunchly defended the levy as a beacon of hope for addressing Kenya's housing deficit.[14] The respondents painted a picture of economic growth, job creation and a thriving construction sector; all hinting on the levy's successful implementation. Was it not in the public interest to support such a transformative initiative?[15] They insisted that the levy was legally compliant and essential for the affordable housing program. The courtroom buzzed with tension as both sides laid out their compelling arguments, each convinced of their righteousness.
Justice Majanja, renowned for his sharp legal acumen, played a pivotal role in declaring the housing levy unconstitutional.[16] Why was this decision so crucial? The judges found Section 84 of the Finance Act, which amended the Employment Act, discriminatory. Consequently, creating unequal principles[17] by unfairly distinguishing between the formal and informal sectors. It is essential for laws to be backed by rational explanations, yet, the government failed to justify the levy or provide a legal framework to support it.[18] Moreover, the court noted that the levy violated Article 10 of the constitution, which underscores the importance of equality and transparency.[19] How can justice prevail without these fundamental principles?
A heated debate accompanied the ruling.[20]Many Kenyans expressed relief with some even calling for the government to refund the money already collected.[21] Nevertheless, there were concerns about the potential negative impacts of the ruling.[22] The government argued that suspending the levy would jeopardise ongoing housing projects and lead to job losses for thousands of workers involved in these projects.[23] Comprehensively, the ruling highlighted the deep divisions in public opinion regarding the best approach to addressing Kenya's housing crisis.[24] Would it bridge the gap or deepen the divide?
In conclusion, as the gavel fell and the courtroom echoed with the finality of Justice Majanja's ruling, it became clear that this was more than just a legal victory; it was a triumph for justice and equity. By addressing the discriminatory nature of the levy and emphasising the need for a comprehensive legal framework, Justice Majanja set a precedent for future judicial decisions. His legacy, indeed, is one of unwavering integrity and commitment to constitutional principles. As we reflect on his contributions, one thing is certain: this case will be remembered as a testament to his impact.[25] How will his legacy shape the future of justice in Kenya? Only time will tell, but his influence will undoubtedly continue to resonate in the corridors of justice.
* The author is an undergraduate student at Kabarak University Law School
[1] Simiyu Wanjala, 'High court declares housing levy unconstitutional', sauce.co.ke, 28 November 2023 -< https://sauce.co.ke/2023/11/high-court-declares-housing-levy-unconstitutional/ > on 6 August 2024.
[2] Simiyu Wanjala, 'High court declares housing levy unconstitutional', sauce.co.ke, 28 November 2023 -< https://sauce.co.ke/2023/11/high-court-declares-housing-levy-unconstitutional/ > on 6 August 2024.
[3]Alex Mathini, Andrew Oduor and Frederick Ogutu, 'Kenya: No legal basis for the deduction and payment of the housing levy for January 2024 following the Court of Appeal's ruling', BOWMAN'S, 8 February 2024 -< Kenya: No legal basis for the deduction and payment of the housing levy for January 2024 following the Court of Appeal's ruling | Bowmans (bowmanslaw.com)> on 6 August 2024.
[4] Amos Khaemba, 'David Majanja: Illustrious judicial career of departed High Court judge', TUKO, 11 July 2024-< https://www.tuko.co.ke/kenya/554759-david-majanja-illustrious-judicial-career-departed-high-court-judge/> on 6 August 2024.
[5] Amos Robi, 'Stellar academic & career profile of departed High Court judge David Majanja', Pulselive.co.ke, 10 July 2024 -< Academic & career profile of departed High Court Judge David Majanja | Pulselive Kenya> on 6 August 2024.
[6] Oki Bin Oki, 'In Memoriam: Honoring the legacy of Justice David Amilcar Shikomera Majanja', KahawaTungu, 10 July 2024 -< In Memoriam: Honoring the Legacy of Justice David Amilcar Shikomera Majanja - KahawaTungu> on 6 August 2024.
[7] Kariuki, 'Kenya's housing levy in the finance bill 2023: A step towards affordable housing?', Telesky News, 17 June 2023 -<Kenya's Housing Levy in the Finance Bill 2023: A Step towards Affordable Housing? – TeleSky News> on 6 August 2024.
[8] Kariuki, 'Kenya's housing levy in the finance bill 2023: A step towards affordable housing?', Telesky News, 17 June 2023 -<Kenya's Housing Levy in the Finance Bill 2023: A Step towards Affordable Housing? – TeleSky News> on 6 August 2024.
[9] Kariuki, 'Kenya's housing levy in the finance bill 2023: A step towards affordable housing?', Telesky News, 17 June 2023 -<Kenya's Housing Levy in the Finance Bill 2023: A Step towards Affordable Housing? – TeleSky News> on 6 August 2024.
[10] Duncan Okello, 'Justice David Majanja: A triple heritage of humanity, intellect and institutionalism', STAR, 17 July 2024 -< Justice David Majanja: A triple heritage of humanity, intellect and institutionalism (the-star.co.ke)> on 6 August 2024.
[11] Peter Obuya and Sharon Mwende, 'Blow to Ruto as court declares housing levy unconstitutional', STAR, 28 November, 2023 -<Blow to Ruto as court declares housing levy unconstitutional (the-star.co.ke)> on 9 August 2024.
[12] Peter Obuya and Sharon Mwende, 'Blow to Ruto as court declares housing levy unconstitutional', STAR, 28 November, 2023 -<Blow to Ruto as court declares housing levy unconstitutional (the-star.co.ke)> on 9 August 2024.
[13] Peter Obuya and Sharon Mwende 'Blow to Ruto as court declares housing levy unconstitutional', STAR, 28 November, 2023 -<Blow to Ruto as court declares housing levy unconstitutional (the-star.co.ke)> on 9 August 2024.
[14] Kariuki, 'Kenya's Housing Levy in the Finance Bill 2023: A Step towards Affordable Housing?', Telesky News, 17 June 2023 -<Kenya's Housing Levy in the Finance Bill 2023: A Step towards Affordable Housing? – TeleSky News> on 6 August 2024.
[15] Peter Obuya and Sharon Mwende, 'Blow to Ruto as court declares housing levy unconstitutional', STAR, 28 November, 2023 -<Blow to Ruto as court declares housing levy unconstitutional (the-star.co.ke)> on 9 August 2024.
[16] Ndungu Chiuri, 'Court declares housing levy unconstitutional', The Kenya Times, 28 November, 2023 -< Finance Act: Court Declares Housing Levy Null & Void (thekenyatimes.com)> on 9 August 2024.
[17] Nation Africa, 'Kenya High Court quashes housing levy', The East African, 28 November 2023 -https://www.theeastafrican.co.ke/tea/news/east-africa/kenya-high-court-quashes-housing-levy-4448000 > on 9 August 2024.
[18] Nation Africa, 'Kenya High Court quashes housing levy', The East African, 28 November 2023 -https://www.theeastafrican.co.ke/tea/news/east-africa/kenya-high-court-quashes-housing-levy-4448000 > on 9 August 2024.
[19] Moses Kinyanjui, 'Win for salaried workers as housing levy declared unconstitutional', Citizen Digital, 28 November 2023 -< Win for salaried workers as Housing levy declared unconstitutional (citizen.digital)> on 9 August 2024.
[20] The National Assembly & Another v Okiya Omtatah Okoiti & others, Civil case E577 of 2023, Judgement of High Court of Kenya at Nairobi (2023) eKLR, para. 45.
[21] Wycliffe Musalia, 'Kenyans react after Court of Appeal dismisses government plea to lift orders suspending housing levy', TUKO, 26 January 2024 -<https://www.tuko.co.ke/business-economy/535822-kenyans-react-court-appeal-upholds-high-court-ruling-housing-levy-refund-money/> on 6 August 2024.
[22] Jewel Kiriungi, 'Kenya housing levy: Blow to William Ruto as court blocks tax', BBC, 26 January 2024 -< Kenya housing levy: Blow to William Ruto as court blocks tax (bbc.com) > on 6 August 2024.
[23]Jewel Kiriungi, 'Kenya housing levy: Blow to William Ruto as court blocks tax', BBC, 26 January 2024 -< Kenya housing levy: Blow to William Ruto as court blocks tax (bbc.com) > on 6 August 2024.
[24] Elijah Ntongai, 'Kenyans share implications of court's ruling on housing levy: "What it means for payroll managers" ', TUKO, 26 January 2024 -<https://www.tuko.co.ke/business-economy/economy/535880-kenyans-share-implications-courts-ruling-housing-levy4Z -what-means-payroll-managers/> on 6 August 2024.
[25] Perpetua Etyang, 'High profile cases Justice David Majanja presided over', 11 July 2024 -< High profile cases Justice David Majanja presided over (the-star.co.ke)> on 9 August 2024.
