Affordable housing units in Bomet county./PCS

The High Court has ruled that President William Ruto’s directives seeking to reserve affordable housing units for teachers and police officers have no legal effect, finding that the President cannot introduce preferential allocation criteria outside the law.

Justice Patricia Nyaudi Mande declared that President William Ruto’s pronouncements seeking to reserve 20 per cent of affordable housing units for teachers and police officers could not lawfully alter or supplement the allocation criteria established under the Affordable Housing Act and its regulations.

In a judgment delivered on Thursday, the judge held that although the President has constitutional powers to direct and coordinate government functions, those powers do not extend to changing legislation enacted by Parliament.

“Executive authority may facilitate the implementation of the law, but it cannot alter the law or create rights and preferences outside it,” Justice Mande ruled.

"To conclude otherwise would be to permit executive fiat to prevail over a statutory framework enacted pursuant to the Constitution, an outcome fundamentally incompatible with the rule of law."

The court also found that the Affordable Housing Act and its regulations already provide the legal framework for allocating housing units, and any changes to the criteria must follow procedures recognised by law.

“The authority does not extend to varying statutory criteria enacted by Parliament,” the judge stated.

The petition was filed by John Maina Ndegwa and Marshall Tito Ongoya against the State Law Office, the Kenya National Union of Teachers (KNUT), Nairobi Branch, and other respondents alongside interested parties.

The petitioners challenged the proposed preferential allocation of housing units to teachers and police officers, arguing that the programme relies on public resources and contributions from Kenyans across different professions.

They contended that reserving 20 per cent of the units for teachers and another 20 per cent for members of the National Police Service would unfairly favour the two occupational groups without statutory authority, objective allocation criteria or public participation.

They also argued that the proposed quotas violated constitutional provisions on equality, non-discrimination, access to housing and the responsible use of public resources.

The petitioners sought orders declaring the directives unconstitutional, prohibiting their implementation and compelling the Affordable Housing Board to establish transparent, inclusive and non-discriminatory allocation criteria.

The respondents opposed the petition, maintaining that the President was exercising his constitutional mandate under Article 132(3)(b), which empowers him to direct and coordinate the functions of ministries and government departments.

They argued that the presidential pronouncements did not amend the Affordable Housing Act, override the Affordable Housing Board’s mandate or constitute binding allocation decisions.

The respondents also maintained that the case was premature because the petitioners had not demonstrated that an actual allocation decision had denied any Kenyan access to housing.

Justice Mande rejected that argument, finding that the petition raised a legitimate constitutional question even though the proposed preferences had not been implemented.

She held that the constitution allows individuals to seek judicial intervention where their rights or the constitution itself are threatened with violation.

On the merits of the case, the judge found that introducing preferential treatment through executive declarations would undermine the rule of law and constitutional principles of equality, transparency and accountable governance.

“Once measured against Article 10, the impugned remarks cannot withstand constitutional scrutiny,” she ruled.

The judge added that the President, like any other state officer, was bound by the constitution and the law.

The court consequently declared that the pronouncements made on June 3 and September 13, 2025, were of no legal effect in the absence of a statutory or policy basis.