High Court Declares Key Presidential Retirement Benefits Provisions Unconstitutional

NAIROBI, Kenya — The High Court has declared key provisions of Kenya's Presidential Retirement Benefits Act unconstitutional, ruling that they cannot be used to withhold, reduce, withdraw or otherwise disadvantageously vary retirement benefits protected for a former President.

Justice Bahati Mwamuye, in a judgment delivered by the High Court, declared Sections 4 and 6 of the Presidential Retirement Benefits Act unconstitutional and void.

The ruling centres on constitutional protections for retirement benefits payable to former Presidents and the political rights of retired Heads of State.

Court Upholds Protection of Presidential Retirement Benefits

The court declared Sections 4(1), 4(2) and 4(3) unconstitutional, null and void.

Section 4 had provided circumstances under which retirement benefits payable to a former President could be withheld, reduced or otherwise affected.

The court found that the provisions were inconsistent with Article 151(3) of the Constitution, which protects the retirement benefits of a former President and former Deputy President.

The constitutional provision states that retirement benefits, facilities and privileges available to a former President and former Deputy President cannot be varied to their disadvantage during the lifetime of the former President.

The case was brought by Sheria Mtaani through lawyer Shadrack Wambui, who argued that Section 4 was inconsistent with the constitutional protection of presidential retirement benefits.

The court further held that any mechanism allowing the deprivation or adverse variation of an accrued presidential retirement benefit without adequate procedural safeguards would also conflict with constitutional protections under Articles 40 and 47, as well as principles of natural justice.

Restrictions on Retired Presidents Also Struck Down

The court separately declared Section 6 of the Act unconstitutional and void in its entirety.

Section 6 sets out the roles of a retired President and contains restrictions relating to political party office after leaving the Presidency.

Justice Mwamuye found that the restrictions on political participation imposed by the provision were inconsistent with constitutionally protected political rights.

The court consequently issued a prohibition order against the enforcement or application of Section 6.

Court Bars Unlawful Variation of Benefits

As part of its orders, the court prohibited the respondents, their agents, servants or anyone acting under their authority from relying on the invalidated portions of Section 4 to withhold, reduce, withdraw, extinguish or otherwise disadvantageously vary retirement benefits protected under Article 151(3).

A separate prohibition order was issued against the enforcement or application of Section 6.

The court, however, made clear that its ruling did not remove Parliament's general authority to legislate on presidential retirement benefits.

“Parliament remains free to legislate within the constitutional field,” the court stated, while emphasizing that statutory powers cannot be exercised on the basis of provisions that have been declared unconstitutional.

Court Declines to Quash Alleged Parliamentary Decision

The court declined to issue an order of certiorari, finding that there was no completed decision before it that could be quashed.

The case had referred to an alleged parliamentary motion dated May 4, 2026. However, the court found that the motion did not amount to a completed decision varying or extinguishing the retirement benefits of a former President.

The court explained that certiorari is intended to quash an existing decision or determination and cannot ordinarily be used against a decision that has not yet been made.

Instead, the court found that prohibition was the appropriate remedy because it operates prospectively to prevent unlawful action.

Separation of Powers

The court also rejected a request that would effectively require it to supervise parliamentary proceedings.

Justice Mwamuye emphasized the principle of separation of powers, saying a blanket order preventing Parliament from initiating, debating or considering any motion concerning presidential retirement benefits would go beyond what was necessary and could improperly interfere with Parliament's constitutional mandate.

The court also clarified that Section 4(4) of the Act had not been declared unconstitutional.

It noted that Section 7, which qualifies the operation of Section 4(4), had not been challenged in the proceedings.

The court further declined to issue additional remedies under Articles 43 and 50 of the Constitution, holding that the declarations and prohibitory orders already granted were sufficient to address the constitutional violations established before the court.

The judgment therefore leaves Parliament with its general legislative mandate while preventing reliance on the provisions declared unconstitutional to take action that would disadvantage retirement benefits protected by the Constitution.