The High Court has ruled that President William Ruto’s pronouncements proposing preferential allocation of affordable housing units to teachers and police officers have no legal effect without a basis in law or an established policy framework.
In a judgment delivered by Lady Justice Nyaundi Patricia Mande, the court held that the President cannot introduce new housing allocation criteria through executive pronouncements where such preferences are not provided for under existing legislation.
The decision follows a constitutional petition challenging proposals to reserve 20 per cent of affordable housing units for teachers and another 20 per cent for members of the National Police Service.
The contested pronouncements were made on June 3 and September 13, 2025, with Ruto announcing the proposed allocations as part of efforts to ensure the two groups benefited from the government’s Affordable Housing Programme.
During a meeting with teachers at State House in Nairobi on September 13, 2025, the President said teachers would receive 20 per cent of the housing units, citing their contributions to the Affordable Housing Levy. He also indicated that an arrangement would be formalised with teachers’ representatives.
However, the court found that the proposed preferences were not provided for under the Affordable Housing Act and its regulations, which establish the legal framework governing the allocation of units.
Justice Mande held that any changes to the allocation criteria must be made through lawful procedures rather than presidential declarations.
The petition was filed by John Maina Ndegwa and Marshalls Tito Ongoya, who argued that the proposed quotas would unfairly favour two professional groups in a housing programme financed through public resources and contributions from Kenyans across different occupations.
They contended that reserving a combined 40 per cent of the units for teachers and police officers would undermine constitutional guarantees of equality, non-discrimination, access to housing, public participation and accountable use of public resources.
The petitioners also argued that the proposed arrangement bypassed the statutory responsibilities of the Affordable Housing Board by introducing allocation preferences without an adequate legal basis.
The respondents opposed the petition, maintaining that the presidential remarks had not amended the Affordable Housing Act or displaced the Board’s statutory mandate. They further argued that the case was premature because the petitioners had not demonstrated that an actual housing allocation decision had denied other applicants access to the programme.
However, Justice Mande found that the petition raised a legitimate constitutional question even though the proposed quotas had not been implemented.
The judge held that individuals can seek judicial intervention where the Constitution or fundamental rights are threatened with violation, without having to wait for the alleged violation to occur.
The court also rejected the argument that Article 132(3)(b) of the Constitution, which empowers the President to direct and coordinate the functions of ministries and government departments, permitted the introduction of allocation criteria outside the law.
Justice Mande emphasised that executive authority must be exercised within constitutional and statutory limits, adding that presidential powers cannot override legislation governing public programmes.
The ruling does not invalidate the Affordable Housing Act or bar teachers and police officers from receiving affordable housing units. Instead, it establishes that preferential allocation criteria cannot be introduced through presidential pronouncements alone where they lack a lawful statutory or policy basis.
The decision places the focus on the legal framework governing the programme, particularly how allocation preferences can be introduced while ensuring that public housing resources are administered in accordance with the Constitution and existing legislation.
