The High Court in Nairobi has ruled that President William Ruto’s directives seeking to reserve 20 per cent of affordable housing units for teachers and police officers have no legal effect without a statutory or policy basis.
In a ruling delivered on Thursday at the Milimani Law Courts, Justice Patricia Nyaundi Mande declared that presidential pronouncements could not lawfully alter or supplement the housing allocation criteria established under the Affordable Housing Act, 2024, and its regulations.
The decision followed a constitutional petition filed by lawyer John Maina Ndegwa and Marshalls Tito Ongoya, who challenged presidential announcements made on June 3 and September 13, 2025, proposing preferential allocation of affordable housing units to teachers and officers of the National Police Service.
The petitioners argued that the directives were unconstitutional because they introduced preferential treatment for specific occupational groups without parliamentary approval, public participation or a clear legal framework governing the allocations.
They further contended that the pronouncements undermined the statutory mandate of the Affordable Housing Board, which is responsible for overseeing the allocation of housing units under the Affordable Housing Act.
Opposing the petition, the State argued that the case was premature, maintaining that the petitioners had failed to demonstrate any actual harm arising from the President’s remarks. The respondents also defended the President’s authority, citing Article 132(3)(b) of the Constitution, which empowers the Head of State to direct and coordinate the functions of ministries and government departments.
According to the State, the President’s pronouncements neither amended the Affordable Housing Act nor displaced the Affordable Housing Board’s statutory mandate. They further argued that the remarks did not amount to actual housing allocation decisions.
However, Justice Mande rejected the argument that the petition was premature, holding that the Constitution allows individuals to seek judicial redress where a violation of their rights is threatened, without waiting for the violation to occur.
The judge observed that the respondents had not disputed that the President made the remarks or that the pronouncements were intended to influence housing allocations in favour of teachers and police officers.
In examining the limits of presidential authority, the court held that the power to coordinate government functions could not be interpreted as allowing the President to change allocation criteria established by Parliament.
“While the President may direct and coordinate the functions of the national executive, that authority does not extend to varying statutory criteria enacted by Parliament,” Justice Mande ruled.
The court emphasised that executive authority must operate within the law, noting that government directives could facilitate the implementation of existing legislation but could not independently create new rights or preferential treatment outside the established legal framework.
The judge warned that allowing presidential pronouncements to override statutory provisions would undermine constitutional governance and the rule of law.
“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 ruled.
Justice Mande further stated that the Affordable Housing Act and its regulations provide the governing framework for allocating housing units, adding that any changes to the established criteria must follow legally recognised procedures.
The Kenya Union of Post Primary Education Teachers (KUPPET), which participated in the proceedings as an interested party, opposed the petition. The union argued that the President’s remarks were proposals that would require legislative amendments before they could take effect.
In its final orders, the court declared that the presidential pronouncements of June 3 and September 13, 2025, had no legal effect in the absence of a statutory or policy basis and could not lawfully alter or supplement the existing housing allocation criteria.
The ruling underscores the limits of executive power in implementing government programmes, affirming that presidential directives cannot replace or modify requirements established by legislation.
It also reinforces the principle that the allocation of public housing must be undertaken within the legal framework enacted by Parliament, rather than through presidential announcements alone.
