Affordable Housing Act

Section 1. Short title Section on the date of assent, section 4 and 5 ;

Section 2. Interpretation Section 2(1) In this Act, unless the context otherwise requires— “agency” means an institution allocated monies for affordable housing under section 11 ; “administrator of the Fund” means the person designated as the administrator of the Fund under section 26 (1); “affordable housing” means housing that is adequate and costs not more than thirty percent of the income of a person per month to rent or acquire; “affordable housing scheme” means the construction of affordable housing units including such other social amenity, infrastructure or services and the acquisition, laying out, subdivision and the development of land comprised within the area of the scheme necessary for social welfare and trading; “Board” means the Affordable Housing Board established under section 16 ; “Cabinet Secretary” means the Cabinet Secretary for the time being responsible for matters relating to affordable housing ; “Chief Executive Officer” means the person appointed as such under section 25 ; “collector” means the Commissioner-General of the Kenya Revenue Authority, appointed under section 11(1) of the Kenya Revenue Authority Act ( Cap. 469 ); “County Committee” means the Cou...

Section 3. Objects and guiding principles Section 3(1)(a) give effect to Article 43(1)(b) of the Constitution on the right to accessible and adequate housing and to reasonable standards of sanitation; Section 3(1)(b) impose a levy to facilitate the provision of affordable housing and institutional housing ; and Section 3(1)(c) provide a legal framework for the implementation of the affordable housing programmes and projects and institutional housing . Section 3(2)(a) the national values and principles of governance under Article 10(2)(b) of the Constitution; Section 3(2)(b) the principles of public finance under Article 201 of the Constitution; and Section 3(2)(c) the values and principles of public service under Article 232 of the Constitution.

Section 4. Imposition ofLevy Section 4(1) There is imposed a levy known as the Affordable Housing Levy . Section 4(2)(a) the gross salary of an employee; or Section 4(2)(b) the gross income of a person received or accrued which is not subject to the Levy under paragraph (a). Section 4(3) The Levy shall be payable to the collector , for remittance into the Fund , not later than the ninth working day after the end of the month in which the gross salary was due or gross income was received or accrued.

Section 5. Obligation of an employer Section 5(1)(a) deduct and remit the amount referred to in section 4 (2)(a) from the gross salary of an employee; and Section 5(1)(b) remit an amount equivalent to the amount deducted under section 4 (2)(a), to the collector. Section 5(2) Without prejudice to the generality of section 6 , any person who complies with the provisions of section 5 shall not be liable to pay the levy under section 4 (2) (b).

Section 6. Exemption from imposition of theLevy Section any income or class of income; or

Section 7. Default on payment of amount ofLevy Section Where an amount of the Levy remains unpaid after the date when it becomes due and payable by a person liable to remit the amount, a penalty equal to three per centum of the unpaid amount shall be due and payable for each month or part thereof that the amount remains unpaid and shall be summarily recovered as a civil debt for the person liable to remit the amount.

Section 8. Establishment ofFund Section There is established a fund to be known as the Affordable Housing Fund which shall be vested in, and managed by, the Board .

Section 9. Sources of funds Section 9(1)(a) monies deducted or payable as the Levy under this Act; Section 9(1)(b) monies appropriated by the National Assembly for the purposes of the Fund ; Section 9(1)(c) gifts, grants or donations; Section 9(1)(d) voluntary contributions made under section 52 ; Section 9(1)(e) income from investments made by the Fund ; Section 9(1)(f) loans approved by the Cabinet Secretary for the time being in charge of the National Treasury; and Section 9(1)(g) income accruing to the Fund in the course of the performance of its functions under any written law. Section 9(2) Without prejudice to the generality of subsection 1(e) and (g), all of the proceeds of sale, rent, and interest shall be paid into the Fund .

Section 10. Purpose of theFund Section 10(1) The purpose of the Fund shall be to provide funds for the design, development and maintenance of affordable housing , institutional housing and associated social and physical infrastructure. Section 10(2)(a) facilitate the provision of funds for affordable housing and affordable housing schemes in the promotion of home ownership; Section 10(2)(b) provide low interest loans or low monthly payment home loans, where applicable for the acquisition of affordable housing units within the approved affordable housing schemes; Section 10(2)(c) facilitate design, development and maintenance of affordable housing schemes in all counties; Section 10(2)(d) facilitate development of institutional housing units; Section 10(2)(e) develop long term finance solutions for the development and off-take of affordable housing ; Section 10(2)(f) provide funds for maintenance of any land or building, estate or interest therein, for any of the purposes of the Fund ; Section 10(2)(g) fund any other activities incidental to the furtherance of the objects of the Fund ; and Section 10(2)(h) facilitate the provision of services to the projects under the management of...

Section 11. Allocations out of theFund Section 11(1)(a) development and off-take of affordable housing programmes and projects; Section 11(1)(b) development of institutional housing ; and Section 11(1)(c) social and physical infrastructure. Section 11(2) The monies may be allocated subject to the annual investment programme under section 15 and the provisions of Part V to the agencies set out in the First Schedule. Section 11(3) The monies may be allocated to county governments in accordance with the Public Finance Management Act ( Cap. 412A ) and on such conditions as may be prescribed by the Cabinet Secretary for the time being responsible for the National Treasury. Section 11(4)(a) up to point five (0.5%) percent of the monies to the collector for the collection of the Levy as may be approved by the Cabinet Secretary for the time being responsible for the National Treasury on the recommendation of the Cabinet Secretary ; Section 11(4)(b) up to two percent of the monies to the Board for the administration of the Fund as may be approved by the Cabinet Secretary for the time being responsible for the National Treasury on the recommendation of the Cabinet Secretary; and Section 11(4...

Section 12. Investments by theBoard Section The Board may, with the approval of the Cabinet Secretary in charge of Treasury, invest any income that is not immediately required.

Section 13. Borrowing by theBoard Section The Board may, with the approval of the Cabinet Secretary in charge of Treasury, borrow funds for the advancement of the objectives of the Act.

Section 14. Five yearaffordable housinginvestment programme Section 14(1) The Board shall develop a five-year affordable housing investment programme every five years. Section 14(2) The Board shall submit the affordable housing investment programme referred to in subsection (1) to the Cabinet Secretary and the Cabinet Secretary for the time being responsible for the National Treasury for onward transmission to the Cabinet for approval. Section 14(3) Upon approval of the affordable housing investment programme by the Cabinet, the Cabinet Secretary shall submit the approved affordable housing investment programme to Parliament.

Section 15. Annual investment programme Section 15(1)(a) the proposed affordable housing projects; Section 15(1)(b) the proposed institutional housing projects; Section 15(1)(c) the proposed allocation of monies out of the Fund ; Section 15(1)(d) the proposed implementing agencies as set out in the First Schedule. Section 15(2) The Board shall submit the annual investment programme referred to in subsection (1) to the Cabinet Secretary . Section 15(3) The Cabinet Secretary shall submit the annual investment programme to Parliament.

Section 16. Establishment ofBoard Section 16(1) There is established a board to be known as the Affordable Housing Board . Section 16(2)(a) suing and being sued; Section 16(2)(b) taking, purchasing or otherwise acquiring, holding, charging or disposing of movable and immovable property; and Section 16(2)(c) doing or performing all other things or acts for the furtherance of the provisions of this Act which may be lawfully done or performed by a body corporate. Section 16(3)(a) a non-executive Chairperson appointed by the President; Section 16(3)(b) the Principal Secretary to the National Treasury or their representative designated in writing; Section 16(3)(c) the Principal Secretary of the State Department for the time being responsible for matters relating to affordable housing or their representative designated in writing; Section 16(3)(d) one shall be a nominee of the Council of County Governors; Section 16(3)(d)(i) one shall be a nominee of the Council of County Governors; Section 16(3)(d)(ii) one shall be a nominee of the Central Organization of Trade Union; and Section 16(3)(d)(iii) one shall be a nominee of the Federation of Kenya Employers; Section 16(3)(e) three persons, n...

Section 17. Functions of theBoard Section 17(1) The object and purpose for which the Board is established is to oversee the development of affordable housing , institutional housing and associated social and physical infrastructure in Kenya. Section 17(2)(a) co-ordinate the optimal utilisation of the Fund in the implementation of programmes and projects relating to the development of affordable housing and institutional housing and associated social and physical infrastructure; Section 17(2)(b) seek to achieve optimal efficiency and cost effectiveness in the development of affordable housing programmes and projects funded by the Fund ; Section 17(2)(c) based on a five year affordable housing investment programme and annual affordable housing investment programme, determine the allocation of financial resources required for the development of the affordable housing projects, institutional housing and associated social and physical infrastructure; Section 17(2)(d) manage the Fund and allocate monies in accordance with section 11 ; Section 17(2)(e) inspect and enforce compliance to this Act, guidelines and regulations set under the Act; Section 17(2)(f) monitor and evaluate, by means...

Section 18. Qualifications for appointment Section 18(1)(a) holds a degree from a university recognized in Kenya; Section 18(1)(b) has ten years’ experience in a senior management position in the public service or private sector; and Section 18(1)(c) meets the requirements of Chapter Six of the Constitution. Section 18(2)(a) meets the requirements of Chapter Six of the Constitution; Section 18(2)(b) has not been convicted of a criminal offence which attracts imprisonment for a term not exceeding six months; Section 18(2)(c) has not been adjudged bankrupt or entered into a composition or arrangement with the creditors of the person; and Section 18(2)(d) is not disqualified under any other written law from appointment as such.

Section 19. Tenure of office Section 19(1) The Chairperson and the members of the Board shall hold office for a term of three years and may be eligible for re-appointment to a further and final term of three years. Section 19(2)(a) has been absent from three consecutive meetings of the Board without justifiable cause or the permission of the Chairperson; Section 19(2)(b) is adjudged bankrupt or enters into a composition or arrangement with the creditors of the person; Section 19(2)(c) is convicted of an offence involving dishonesty or corruption; Section 19(2)(d) becomes incapable of carrying out the functions of their office, either arising from an infirmity of mind or body; Section 19(2)(e) violates Chapter Six of the Constitution; or Section 19(2)(f) fails to disclose any interest in a matter under consideration by the Board as provided for under section 23 (1). Section 19(3) A member of the Board shall cease to be a member of the Board if that member resigns from office by a notice in writing addressed to the appointing authority.

Section 20. Filling of vacancy Section Whenever the office of the Chairperson or a member becomes vacant before the expiry of the term of office, the appointing authority shall, on the recommendation of the nominating body, where applicable, appoint a person who holds a similar qualification to fill the vacant position for the remainder of the term.

Section 21. Conduct of affairs and business of theBoard Section 21(1) The conduct of affairs and business of the Board shall be in accordance with the Second Schedule. Section 21(2) Subject to subsection (1), the Board may regulate its own procedures.

Section 22. Committees of theBoard Section 22(1) The Board may establish such committees consisting of such members of the Board to deal with such matters as the Board may specify. Section 22(2) The Board may co-opt persons who are not members of the Board to committees established under subsection (1) for a particular reason and such persons shall serve in such committees for such period as the Board may determine.

Section 23. Disclosure of interest Section 23(1) If a member of the Board is present at a meeting of the Board or any committee of the Board at which any matter is the subject of consideration and in which matter the member or the dependants of the member are directly or indirectly interested in a private capacity, the member shall, as soon as practicable, after the commencement of the meeting, disclose such interest and shall not, unless the Board otherwise directs, take part in any consideration or discussion, or vote on any question relating on such matter. Section 23(2) A disclosure of interest made under this section shall be recorded in the minutes of the meeting at which it is made. Section 23(3) Failure to disclose such interest shall lead to the disqualification of the member from holding office as a member.

Section 24. Remuneration ofBoardmembers Section The Chairperson and the members of the Board shall be paid such sitting allowances or other remuneration for expenses as recommended by the Salaries and Remuneration Commission.

Section 25.Chief Executive Officerof theBoard Section 25(1) There shall be a Chief Executive Officer of the Board who shall be competitively recruited and appointed by the Board , in consultation with the Cabinet Secretary , on such terms and conditions of service as shall be specified in the instrument of appointment or otherwise in writing from time to time. Section 25(2)(a) holds a degree from a university recognized in Kenya; Section 25(2)(b) has at least ten years’ experience in a managerial capacity in built environment, finance, or law; and Section 25(2)(c) meets the requirements of Chapter Six of the Constitution. Section 25(3) The Chief Executive Officer shall hold office for a term of three years and shall be eligible for reappointment for one further term of three years.

Section 26. Administrator of theFund Section 26(1) The Chief Executive Officer shall be the administrator of the Fund . Section 26(2)(a) supervise and control the day-to-day administration of the Fund ; Section 26(2)(b) prepare the annual work plan for the Fund for approval by the Board ; Section 26(2)(c) open and operate the accounts of the Fund with the approval of the Board and the National Treasury; Section 26(2)(d) prepare estimates of annual revenue and expenditure of the Fund and submit to the Board for approval; Section 26(2)(e) implement policies approved by the Board for the attainment of the objects of the Fund ; Section 26(2)(f) advise the Board on matters relating to the administration of the Fund ; Section 26(2)(g) co-ordinate the monitoring and evaluation of affordable housing projects and programmes financed from the Fund ; Section 26(2)(h) keep books of accounts and other books and records in relation to the Fund of all activities and undertakings financed by the Fund ; Section 26(2)(i) be the custodian of the assets, property, and equipment of the Fund ; Section 26(2)(j) establish proper systems of internal control and management in accordance with provisions of t...

Section 27.Fundnot to be overdrawn Section The administrator of the Fund shall ensure that no bank accounts of the Fund are overdrawn.

Section 28. Administrative costs Section The administrative costs of the Fund shall not exceed two percent of the latest audited financial statement of the Fund .

Section 29. Power of theadministrator of the Fundto access information Section The administrator of the Fund may access any programme and project related data that the Administrator considers necessary for the performance of their functions under this Act.

Section 30. Corporation Secretary Section 30(1) There shall be a Corporation Secretary to the Board who shall be competitively recruited and appointed by the Board . Section 30(2)(a) holds a degree from a university recognised in Kenya; Section 30(2)(b) is a Certified Public Secretary and a member of the Institute of Certified Public Secretaries of Kenya in good standing; Section 30(2)(c) has at least ten years’ experience in offering the services of a certified public secretary; and Section 30(2)(d) meets the requirements of Chapter Six of the Constitution. Section 30(3)(a) providing guidance to the members of the Board on their duties, responsibilities and powers and how these should be exercised in the best interests of the Board ; Section 30(3)(b) ensuring that the procedures of the Board are followed and reviewed regularly, and that the members of the Board comply with written law; Section 30(3)(c) assisting the Chairperson of the Board to organise the activities of the Board , including providing information, preparing agenda, issuing notices and preparing for meetings, conducting evaluations of the Board and development programmes of the Board ; Section 30(3)(d) providing se...

Section 31. Staff of theBoard Section 31(1) The Board may appoint such members of staff as may be necessary for the proper discharge of the functions of the Board , on such terms and conditions of service as the Board may determine. Section 31(2) The staff of the Board shall be the secretariat of the Fund reporting to the Chief Executive Officer .

Section 32. Delegation of powers Section The Board may, by resolution generally or in any particular case, delegate to the administrator of the Fund , an officer, employee or agent of the Board , the exercise of any of the powers or the performance of any of its functions under this Act or under any other written law.

Section 33. The common seal Section 33(1) The common seal of the Board shall be kept in such custody as the Board may direct and shall not be used except by the order of the Board . Section 33(2) The common seal of the Board shall, when affixed to a document and is duly authenticated, be judicially and officially noticed, and unless and until the contrary is proved, any necessary order or authorisation by the Board under this section shall be presumed to have been duly given.

Section 34. Establishment of County Rural and Urban Affordable Housing Committees Section 34(1) There is established in every county, a County Rural and Urban Affordable Housing Committee. Section 34(2)(a) a non-executive chairperson who shall be nominated by the county governor; Section 34(2)(b) the County Executive Committee member responsible for matters relating to housing or their representative designated in writing; Section 34(2)(c) one shall be a representative of a registered association of traders operating in the county; Section 34(2)(c)(i) one shall be a representative of a registered association of traders operating in the county; Section 34(2)(c)(ii) one shall be a representative of a registered residential association; in the county; Section 34(2)(iii) one shall be a member of the public residing within the county; and Section 34(2)(d) the chief officer for the time being in charge of housing, who shall be an ex-officio member and the secretary to the County Committee . Section 34(3) A person nominated under subsection (2) (a) and subsection (2) (d), shall be vetted and approved by the county assembly. Section 34(4)(a) ensure that not more than twoUthirds of the memb...

Section 35. Qualifications for appointment Section 35(1)(a) holds a degree from a university recognized in Kenya; Section 35(1)(b) has at least five years’ experience in matters relating to housing, built environment, banking, or finance; Section 35(1)(c) has resided in the county for a period of not less than five years; and Section 35(1)(d) meets the requirements of Chapter Six of the Constitution. Section 35(2)(a) meets the requirements of Chapter Six of the Constitution; Section 35(2)(b) has not been convicted of a criminal offence which attracts imprisonment for a term not exceeding six months; Section 35(2)(c) has not been adjudged bankrupt or entered into a composition or arrangement with the creditors of the person; and Section 35(2)(d) is not disqualified under any other written law from appointment as such.

Section 36. Tenure of office Section 36(1) The Chairperson and members of the County Committee , shall hold office for a term of three years and may be eligible for reUappointment for an additional final term of three years. Section 36(2)(a) has been absent from three consecutive meetings of the Committee without justifiable cause or the written permission of the Chairperson; Section 36(2)(b) is adjudged bankrupt or enters into a composition or arrangement with the creditors of the person; Section 36(2)(c) is convicted of an offence involving anti-economic crimes or corruption; Section 36(2)(d) becomes incapable of carrying out the functions of their office due to an infirmity of mind or body; Section 36(2)(e) violates Chapter Six of the Constitution; or Section 36(2)(f) fails to disclose any interest in a matter under consideration by the Committee as provided for under this Act.

Section 37. Remuneration of theCounty Committeemembers Section The Chairperson and the members of the County Committee shall be paid such sitting allowances or other remuneration for expenses as recommended by the Salaries and Remuneration Commission.

Section 38. Conduct of affairs and business of theCounty Committee Section 38(1) The conduct of affairs and business of the County Committee shall be in accordance with the Second Schedule to this Act. Section 38(2) Subject to subsection (1), the Committee may amend its own procedures for the better carrying out of its functions.

Section 39. Functions of theCounty Committee Section in consultation with the Board , develop a framework for the attainment of affordable housing in the county;

Section 40. County legislation Section Nothing in this Act shall preclude county governments from enacting legislation related to affordable housing in the counties.

Section 56. Misappropriation of funds of theFund Section 56(1) A person commits an offence if the person misappropriated any funds or assets of the Fund , or assists or causes any person to misappropriate or apply the funds otherwise than in the manner provided in this Act. Section 56(2)(a) to a fine not exceeding twenty million shillings or imprisonment of a term not exceeding ten years, or both; and Section 56(2)(b) an additional mandatory fine if, as a result of the conduct that constituted the offence, the person received a quantifiable benefit or any other person suffered a quantifiable loss. Section 56(3)(a) the mandatory fine shall be equal to two times the amount of the benefit or loss described in subsection (2)(b); Section 56(3)(b) if the conduct that constituted the offence resulted in both a benefit and loss described in subsection (2)(b), the mandatory fine shall be equal to two times the sum of the amount of the benefit and the amount of the loss.

Section 57. Other offences Section 57(1)(a) fails to give information or gives inaccurate or misleading information or falsifies information or misrepresents information required under this Act; Section 57(1)(b) to any person other than a person to whom they are authorized by the Board to communicate it or Section 57(1)(b)(i) to any person other than a person to whom they are authorized by the Board to communicate it or Section 57(1)(b)(ii) otherwise than for the purposes of this Act. Section 57(2) A person who contravenes the provisions of subsection (1) shall be liable, on conviction to a fine not exceeding ten million shillings or imprisonment of a term not exceeding five years, or to both.

Section 58. Protection from personal liability Section No matter or thing done by any person under this Act shall, if the matter or thing is done in good faith and in accordance with the law, render that person personally liable to any action, claim or demand whatsoever.

Section 59. Regulations Section 59(1) The Cabinet Secretary may, in consultation with the Board , make Regulations for better carrying into effect the provisions of this Act. Section 59(2)(a) the criteria for exemptions granted under section 6 ; Section 59(2)(b) criteria for eligibility of allocation of an affordable housing unit under section 48 ; Section 59(2)(c) requisite deposit for the housing under section 49 (2); Section 59(2)(d) identification documents under section 49 ; Section 59(2)(e) regulations under Part V; Section 59(2)(f) the criteria for change of affordable housing unit; Section 59(2)(g) the provisions on voluntary savings; Section 59(2)(h) the provisions relating to off-take of affordable housing units; Section 59(2)(i) the inclusivity and diversity within affordable housing schemes; Section 59(2)(j) the application and integration of technology- based platforms in the administration and management of affordable housing schemes; Section 59(2)(k) the typology and dimensions for affordable housing units relative to the incomes of the individual applicants; Section 59(2)(l) the procedural guidelines for the Board to off-take affordable housing units under an afford...

Section 60. Consequential amendment and transition Section 60(1) The Acts specified in the first column of the Third Schedule are amended in the manner specified in the second column. Section 60(2) Any payment made or action taken under the sections repealed under subsection (1) shall be deemed to have been paid or taken under this Act. Section 60(3) Any commitment or obligation on the National government on affordable housing which have arisen or made in accordance with an Act of Parliament shall be deemed to be a commitment or obligation made under this Act. Section 60(4) Any ongoing project or programme on affordable housing implemented pursuant to a commitment or obligation under subsection (3) shall be deemed to be a project or programme commenced under this Act.

Section 61. Revocation of affordable HousingFundRegulations Section 61(1) All regulations in force immediately before the commencement of this Act and applicable to affordable housing and voluntary contributions are hereby revoked. Section 61(2) All monies which immediately before the commencement of this Act, that were held by the National Housing Corporation under the Housing Fund Regulations, 2018 shall vest in the Fund and shall be deposited into the Fund . Section 61(3) The National Housing Corporation shall account for and give a record of all contributions made under the Housing Fund Regulations, 2018. Section 61(4) The administrator of the Fund shall notify the contributors and create an account for each contributor.

Section 41. Allocation of land Section 41(1) The provisions of the Land Act shall, subject to subsection (2), apply to the allocation of public land for the implementation of the affordable housing scheme and development of institutional housing scheme. Section 41(2) Land held by a county government shall not be allocated unless the Board has, in the prescribed manner, carried out public participation and stakeholder engagement with the affected community within the county.

Section 42. Agreement with national governmentagency Section 42(1) The Board may appoint a national government agency to develop affordable housing units and the associated social and physical infrastructure. Section 42(2) Subject to the Public Finance Management Act ( Cap. 412A ), the Board may disburse such monies to the national government agency for the performance of the functions under subsection (1).

Section 43. Agreement forinstitutional housing Section the development of institutional housing units; and

Section 44. Agreement with private institutions and persons Section 44(1)(a) to develop and construct affordable housing units and associated social and physical infrastructure; and Section 44(1)(b) for the supply of goods and materials in connection with the construction of affordable housing units. Section 44(2) The Board shall, before entering into an agreement under subsection (1), publish in at least two newspapers of nationwide circulation and on electronic media, a notice of intention to enter into an agreement and invitation of tenders from the public in the prescribed form. Section 44(3) The Cabinet Secretary may, in consultation with the Board , prescribe guidelines for the publication of a notice under subsection (2) and invitations to tender.