Law Society of Kenya

Kenya Lavington, opp Valley Arcade, Gitanga Road

P.O Box 72219-00200 Nairobi, Kenya
Dropping Zone -149 Embassy House Basement
Tel: +254
Website: www.lsk.or.ke
PRESS STATEMENT Email: lsk@lsk.or.ke

Our Ref: S/24

Your Ref: TBA

Date: 4th March, 2024

LSK STATEMENT ON THREATS TO THE RULE OF LAW

On the 28th November, 2023 the High Court at Nairobi rendered a decision in the
consolidated petitions challenging the enactment of Section 84 of the Finance Act, 2023
that introduced the Housing Levy and declared the said section unconstitutional. The High
Court granted interim orders of stay of execution that were to lapse on 10th January, 2024,
to enable the state to file an application for stay of execution in the Court of Appeal. The
Court of Appeal considered the application and, on the 26th January, 2024, dismissed the
application thereby meaning that the declaration of unconstitutionality came into force
and that Section 84 of the Finance Act has no force of law.

It has come to our attention that the Kenya Revenue Authority and other government
agencies have despite the declaration of Section 84 as being unconstitutional have
continued to deduct and remit to the Kenya Revenue Authority the Housing Levy. There
is no legal basis to deduct the Housing Levy and this action amounts to contempt of Court
and arbitrary imposition of tax. The Law Society of Kenya shall immediately commence
contempt of Court proceedings against the Commissioner General of the Kenya Revenue
Authority as well as against all accounting officers and employers who have unlawfully
deducted the Housing Levy.

We call on all employees who have suffered this illegal deduction to get in touch with the
Law Society through email address lsk@lsk.or.ke and share their salary pay slips to facilitate
the filing of the application seeking refund of the illegally deducted dues. The pay slips will
be redacted to conceal identity details that can be used to identify and possibly punish any
employees that share the details with us.

We further implore the Kenya Revenue Authority and other accounting officers to note
that currently there is no law authorizing the implementation of the Housing Levy. Taxes
cannot be collected in the absence of an enabling legislation. The disregard of court orders
will if unchecked lead to a breakdown of law and order, we remind the government that
it has an obligation to ensure that the rule of law is promoted and not compromised.

The Law Society of Kenya wishes to condemn in the strongest terms possible the willful
disregard to the law being demonstrated by government agencies. On Thursday 29th
February 2024, officials and members of the Kenya Medical Practitioners and Dentists
Union (KMPDU), led medical interns in a peaceful protest over delayed posting of medical
interns and payment of fees for postgraduate students. The Police responded by deploying
disproportionate force against the protesters leading to the shooting of KPMDU Secretary
General Dr. Davji Atellah with a tear gas canister and occasioning serious injuries to other
innocent protesters.

The Law Society of Kenya notes with concern the disregard by the police of their
constitutional duty, violation of rights to protest and disproportionate use of force. LSK
will join in solidarity with KMPDU in taking all necessary action to ensure justice is served
for Dr. Davji. We demand that the Inspector General of Police and IPOA take immediate
steps to hold the rogue individuals who committed this heinous attack personally liable.

We note with concern that this comes against the backdrop of live bullets being used
against members of the Law Society during a protest in Nakuru County last month. It is
disconcerting that the police appear to have taken a path of using force against professional
bodies seeking to protect the rights and interests of their members and the people of Kenya.
These sustained malicious acts are an outright abrogation of the police’s constitutional duty
under article 244 (c) of the Constitution of Kenya.

It would appear from the above incidents that there is an informal government policy to
disregard the obedience of the law and regard to court orders the government does not
agree with. We are concerned that unless this trend is checked the Country is likely to roll
back the democratic gains it has made so far.

Eric Theuri
President Law Society of Kenya