The High Court has ruled that presidential pronouncements proposing preferential allocation of affordable housing units to teachers and police officers cannot introduce new allocation criteria without a legal or policy basis.
In a judgment, Justice Nyaundi Patricia Mande held that the President cannot create housing allocation preferences through executive pronouncements where the criteria are not provided for under existing law.
The court declared that remarks made by the President on June 3 and September 13, 2025, could not lawfully alter or supplement the allocation criteria established under the Affordable Housing Act and its regulations.
The ruling followed a constitutional petition filed by John Maina Ndegwa and Marshalls Tito Ongoya, who challenged 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 petitioners argued that the proposed quotas would unfairly favour the two professional groups in a housing programme financed through public resources and the Affordable Housing Levy, to which Kenyans across different occupations contribute.
They contended that the proposals threatened constitutional guarantees of equality, non-discrimination, access to housing, public participation and accountable use of public resources.
Justice Mande rejected the argument that the President’s actions were permissible under Article 132(3)(b) of the Constitution, which empowers the Head of State to direct and coordinate the functions of ministries and government departments.
The judge held that presidential authority must be exercised within constitutional and legal limits, noting that the Affordable Housing Act and its regulations already provide the framework for allocating housing units.
She said any changes to the criteria must follow lawful procedures, adding that the proposed preferences for teachers and police officers were not provided for in the existing statutory framework.
The court found that introducing such preferences through executive declarations would undermine the rule of law, equality, transparency and accountable governance.
“Executive authority may facilitate the implementation of the law, but it cannot alter the law or create rights and preferences outside it,” the court held.
The respondents had asked the court to dismiss the petition, arguing that it was premature and speculative because no actual housing allocation decision had been made that denied other Kenyans access to the programme.
They maintained that the President’s remarks had not amended the Affordable Housing Act, overridden the Affordable Housing Board’s mandate or amounted to binding administrative decisions.
However, the court found that the petition raised a legitimate constitutional question even though the proposed quotas had not been implemented. Justice Mande noted that individuals can seek judicial intervention when a constitutional provision or fundamental right is threatened with violation, without having to wait for the violation to occur.
The judge also observed that the respondents did not deny that the President had made the remarks or that the pronouncements contemplated preferential treatment for the two groups.
The court clarified that its decision did not invalidate the Affordable Housing Act or prohibit lawful housing allocations to teachers and police officers. Rather, the ruling established that presidential pronouncements alone cannot introduce new allocation criteria without a lawful statutory or policy basis.
