LSK Statement on Threats to the Rule of Law

The LSK President Eric Theuri with the LSK VP, Faith Odhiambo, Council Member Mwaura Kabata and LSK CEO Florence Muturi.

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 [email protected] 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.

Law Society of Kenya
Law Society of Kenya
The Law Society of Kenya (LSK) is Kenya’s premier bar association, with membership of all practicing advocates, currently numbering over twenty thousand members.

Leave a Reply

Your email address will not be published. Required fields are marked *

Skip to content // Sitewide Modals