High Court has stopped the implementation of the Retirement Benefits (Mortgage Loans) (Amendment) Regulations, 2020 which allows workers to withdraw part of their pension to buy a home.
Justice Anthony Ndung’u said that the amendment to the law was done through an irregular and flawed process because Parliament did not allow for public participation.
The law change, signed in 2020 by former Treasury CS Ukur Yatani, allows workers to access up to Sh7 million or a maximum of 40 percent of their retirement savings to buy their first residential house.
"Article 10 provides the national values and principles of governance which bind Parliament when it legislates and Article 118 provides that Parliament shall conduct its business in an open manner and facilitate public participation and involvement in the legislative process while Article 93(2) provides that the National Assembly and the Senate shall perform their respective functions in accordance with the Constitution," Justice Ndung’u said in his judgment.
Pension schemes had until September 14, 2021, to amend their rules to allow their members early to access their savings for house purchases.
The law was meant to boost home ownership in a market where most people employed in the formal sector are unable to raise the deposit or afford the typical monthly mortgage payments.
“A member may utilise a portion of the member’s accrued benefits to purchase a residential house from an institution,” reads part of The Retirement Benefits (Mortgage Loans) (Amendment) Regulations, 2020.
“The portion available to a member for the purchase of a residential house at the time of the application shall be … an amount not exceeding forty percent of the member’s accrued benefits: Provided that such sum shall not exceed seven million shillings.”
Trustees of the retirement schemes made the rules to be followed before one can access their pension to fund his or her home purchase.
The trustees make sure the houses are priced at market value and their ownership will only be transferred under special circumstances, including the death of a member, in measures aimed at preventing abuse of the incentive.