Affordable Housing Act

Short title: Section on the date of assent, section 4 and 5

Provides definitions for terms used in the Act (for example: agency, Fund, Levy, affordable housing) and sets income-based categories of housing (social, affordable, middle-class, rural) with specified monthly-income thresholds.

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

Imposes an Affordable Housing Levy which is 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.

Employers must deduct from employees' gross salary the amount referred to in section 4(2)(a) and remit an equivalent amount to the collector; persons who comply with section 5 are not liable to pay the levy under section 4(2)(b).

Section 6: Exemption from imposition of the Levy

If a person required to remit the Levy does not pay when due, they must pay a penalty equal to three per cent of the unpaid amount for each month (or part) it remains unpaid.

The purpose of the Fund is to provide funds for the design, development and maintenance of affordable housing, institutional housing and associated social and physical infrastructure, and to facilitate related funding and services.

Section 11 authorizes allocation of monies from the Fund for development and administration purposes and sets specific percentage allocations and conditional grant treatment, with approvals and conditions involving the Cabinet Secretary.

The Board may invest income that is not immediately required, with the approval of the Cabinet Secretary in charge of Treasury.

The Board may borrow funds with the approval of the Cabinet Secretary in charge of Treasury to advance the Act's objectives.

The Board must develop a five-year affordable housing investment programme every five years, submit it to the Cabinet Secretary and the Treasury Secretary for onward transmission to Cabinet for approval, and once Cabinet approves it the Cabinet Secretary must submit the approved programme to Parliament.

Section 15 requires the annual investment programme to set out specific proposed projects, allocations and implementing agencies; the Board must submit that programme to the Cabinet Secretary, who must in turn submit it to Parliament.

Establishes the Affordable Housing Board, lists its powers and sets out composition and appointment arrangements for members.

The Board must carry out specified functions to oversee, coordinate, resource, manage, inspect, monitor and approve activities for the Fund supporting affordable and institutional housing and associated infrastructure.

Lists the qualifications and disqualifications for appointment, including holding a recognized university degree; ten years’ senior management experience; meeting Chapter Six requirements; not having certain criminal convictions; not being adjudged bankrupt or in composition with creditors; and not being disqualified under any other written law.

The Chairperson and members hold office for three years and may be re-appointed for one further final three-year term; members cease to be members on specified grounds or resignation by written notice to the appointing authority.

When the Chairperson's or a member's office becomes vacant before the term ends, the appointing authority shall, on the nominating body's recommendation where applicable, appoint a similarly qualified person to serve the remainder of the term.

The Board must conduct its affairs and business in accordance with the Second Schedule; subject to that, the Board may regulate its own procedures.

The Board may create committees of Board members and may co‑opt non‑members to those committees for particular reasons and periods.

Board members must disclose private interests in matters before the Board and must not participate in discussion or voting on those matters unless the Board directs; disclosures must be recorded and failure to disclose can lead to disqualification.

The Chairperson and members of the Board must be paid sitting allowances or other remuneration for expenses as recommended by the Salaries and Remuneration Commission.

The Board must competitively recruit and appoint a Chief Executive Officer in consultation with the Cabinet Secretary; candidates must hold specified qualifications and the CEO serves a three-year term, eligible for one further three-year reappointment.

The Chief Executive Officer is designated as the administrator of the Fund and the provision lists the CEO's specific responsibilities relating to managing, operating, accounting for, and safeguarding the Fund.

The administrator of the Fund must ensure that the Fund's bank accounts are not overdrawn.

The Fund's administrative costs must not exceed two percent of the Fund's latest audited financial statement.

The administrator of the Fund may access any programme and project related data the Administrator considers necessary to perform their functions under the Act.

The Board must competitively recruit and appoint a Corporation Secretary, and the Corporation Secretary must perform specified governance and secretarial duties for the Board.

The Board may appoint necessary staff and determine their terms; the staff shall serve as the Fund's secretariat reporting to the Chief Executive Officer.

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

The section says the Board's common seal must be kept in custody as the Board directs, and the seal is not to be used except by order of the Board; when duly authenticated on a document it will be judicially and officially noticed and orders or authorisations by the Board under this section are presumed until proved otherwise.

Establishes the Affordable Housing Fund and provides that it is vested in and managed by the Board.

Lists the sources of funds for the Affordable Housing Fund, naming levy receipts, appropriations, gifts, grants, donations, voluntary contributions, investment income, approved loans, and income accruing in the performance of its functions.

Every county must have a County Rural and Urban Affordable Housing Committee; members nominated to the chairperson and the chief officer in charge of housing must be vetted and approved by the county assembly, and the committee's membership must meet gender, minority and marginalised-group representation requirements.

Sets out the qualifications required for appointment, including a recognized university degree, at least five years’ relevant experience, county residency of not less than five years, and compliance with Chapter Six of the Constitution; additional clauses list disqualifying factors such as certain convictions, bankruptcy or composition with creditors, and other statutory disqualifications.

The Chairperson and members of the County Committee shall hold office for three years and may be reappointed for one additional final three-year term.

The Chairperson and members of the County Committee must be paid sitting allowances or other remuneration for expenses as recommended by the Salaries and Remuneration Commission.

The County Committee must conduct its affairs and business in accordance with the Second Schedule; subject to that, the Committee may amend its own procedures to better carry out its functions.

The County Committee must, in consultation with the Board, develop a framework to attain affordable housing in the county.

County governments may enact legislation related to affordable housing in the counties.

Makes it an offence for a person to misappropriate funds or assets of the Fund or to assist or cause such misappropriation; penalties include a fine not exceeding twenty million shillings, imprisonment up to ten years, and an additional mandatory fine equal to twice the benefit or loss.

Persons must not provide false, misleading, inaccurate or falsified information required under the Act, nor communicate such information except to persons authorised by the Board; contravention attracts a fine up to ten million shillings or imprisonment up to five years, or both.

Persons acting under the Act in good faith and in accordance with the law are not personally liable for actions, claims or demands arising from those acts.

The Cabinet Secretary may make regulations (in consultation with the Board) to implement the Act; must table those regulations before Parliament within thirty days of commencement; regulations take effect only if approved by a resolution of Parliament; if a House does not approve or reject within fifteen sitting days it is deemed approved.

Section 60 makes consequential amendments and specifies transitional deeming rules: Acts listed in the Third Schedule are amended as specified; payments or actions under repealed sections are deemed to have been made under this Act; commitments or obligations on the National government about affordable housing made under previous Acts are deemed to be made under this Act; and ongoing affordable-housing projects or programmes under such commitments are deemed to have been commenced under this Act.

The National Housing Corporation must account for and record contributions made under the Housing Fund Regulations, 2018; the Fund administrator must notify contributors and create an account for each contributor.

The Land Act applies to allocation of public land for the affordable housing and institutional housing schemes; land held by a county government must not be allocated unless the Board, in the prescribed manner, has carried out public participation and stakeholder engagement with the affected community within the county.

The Board may appoint a national government agency to develop affordable housing and may, subject to the Public Finance Management Act (Cap. 412A), disburse monies to that agency for performing those functions.

Agreement for institutional housing concerning the development of institutional housing units.

The Board must publish a notice of intention and invite tenders before entering into an agreement; the Cabinet Secretary may prescribe publication guidelines in consultation with the Board.

The Board may enter agreements with approved institutions or mortgage schemes to finance off-take of affordable housing units; the Fund may disburse monies to the approved institution, subject to the Public Finance Management Act (Cap 412A).

Where possible, use locally available materials.

Issue a notice, in the prescribed form, to the residents in that settlement of the intended implementation of the project.

A person is entitled to be allocated one affordable housing unit if they meet the criteria set out in regulations.

A person who meets the criteria in section 48 and wants an affordable housing unit must apply to the Board in the specified manner; the Board must give preference to marginalised persons, vulnerable groups, youth, women and persons with disabilities.

The Cabinet Secretary may, in consultation with the Board, issue regulations to better carry out subsection (1).

Loan interest or administration fee for loans under this Act shall be payable on a reducing balance at a rate that the Cabinet Secretary may prescribe.

Allows eligible persons to make voluntary savings with the Fund; requires the Fund administrator to open a separate bank account and issue account numbers; permits withdrawal with ninety days' written notice or application to the Board for a mortgage; applications for a mortgage must be accompanied by an agreement using saved deposits and land as collateral; upon Board approval the applicant must cause a charge on title in favour of the Board.

The Board must transfer ownership of an affordable housing unit to a qualified applicant, with Cabinet Secretary approval and upon completion of payment; the Registrar must not register a transfer without the Board's written consent; the Board's certificate that a unit was sold is conclusive evidence of consent.

A purchaser of an affordable housing unit under this Act must not sell or agree to sell the unit or any interest in it to another person except with the prior written consent of the Board.

The administrator of the Fund must ensure proper books and records of account are kept for the Fund's income, expenditure and assets.