Kenya's Affordable Housing Act and the limits of socioeconomic rights
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A legal analysis argues that Kenya's Court of Appeal upheld the 2024 Affordable Housing Act by relying on the doctrine of progressive realisation, raising questions about how the law delivers housing as a constitutional right.
The Kenyan Court of Appeal's recent judgment ([2026] KECA 1821 (KLR)) upholding the 2024 Affordable Housing Act presents a case study on the limits of judicial enforcement of socio-economic rights, according to a legal analysis published in The Star.
Article 43(1)(b) of Kenya's Constitution guarantees everyone the right to accessible and adequate housing. The Act levied a tax of 1.5% on the gross salary or income of every employee, channelled into an affordable housing fund managed by an affordable housing board.
The law provides for public land to be allocated for affordable and institutional housing schemes, with building carried out in part by contracted private parties. Eligible persons, to be determined through regulations, could apply for and be allocated a unit they would purchase at an agreed price, with loan schemes also provided for.
The analysis describes the arrangement as, in essence, a somewhat subsidised private housing market on public land, where the extent of the subsidy would be financed through a general tax. It notes that the Court of Appeal accepted that the programme is meant for those intending to purchase or develop housing and does not cater for no-income earners, who it said were most deserving of constitutional intervention.
Despite that finding, the court upheld the Act by relying on the doctrine of progressive realisation, citing South Africa's 2000 Grootboom case. The doctrine holds that because of potential budgetary constraints, a socio-economic right might not be implemented immediately, with governments accorded a margin of appreciation in progressively moving towards its realisation.
The analysis argues that deploying progressive realisation to such legislation is conceptually difficult, because the Act entrenches market-based relations around housing with the state acting as a guarantor and commodity provider for what is essentially a private housing market. It concludes that a model that leaves no-income individuals unable to exercise the right the Constitution accords them is hard to reconcile with progressive realisation of the right to housing.