The High Court has declared key sections of the Presidential Retirement Benefits Act unconstitutional, ruling that retirement benefits protected for a former President cannot be withdrawn, reduced or otherwise changed to their disadvantage.
Justice Bahati Mwamuye found Sections 4 and 6 of the law inconsistent with the Constitution, while issuing orders stopping authorities from relying on the invalidated provisions.
Highlights
- Sections 4 and 6 of the Presidential Retirement Benefits Act were declared unconstitutional.
- The court barred adverse changes to protected retirement benefits.
- Restrictions on a retired President’s political participation were also struck down.
- Parliament retains its legislative powers but must operate within constitutional limits.
- The court declined to quash an alleged parliamentary motion that had not become a final decision.
Main Story
Court Protects Former Presidents’ Retirement Benefits
The High Court has struck down provisions of the Presidential Retirement Benefits Act that allowed retirement benefits owed to a former President to be withheld, reduced or otherwise varied.
In a judgment delivered by Justice Bahati Mwamuye, the court declared Sections 4(1), 4(2) and 4(3) unconstitutional, null and void.
The decision followed a petition by Sheria Mtaani, represented by lawyer Shadrack Wambui, challenging the provisions on constitutional grounds.
The petitioners argued that Section 4 conflicted with Article 151(3) of the Constitution, which protects the retirement benefits and privileges of a former President from being changed to their disadvantage during their lifetime.
What Article 151(3) Protects
Article 151(3) provides constitutional protection for retirement benefits payable to a former President and former Deputy President.
The court agreed that statutory provisions cannot be used to undermine that protection.
It consequently issued a prohibition order preventing the respondents, their agents and anyone acting under their authority from relying on the invalidated parts of Section 4 to withdraw, reduce, withhold, extinguish or otherwise disadvantageously alter benefits protected under the Constitution.
Restrictions on Retired President Also Struck Down
The court also declared Section 6 of the Act unconstitutional and void in its entirety.
The provision sets out the roles of a retired President and contains restrictions relating to political party positions after leaving office.
Justice Mwamuye found that the restrictions interfered with constitutionally protected political rights.
The court therefore issued a separate prohibition order against the enforcement or application of Section 6.
Parliament Still Has Power to Legislate
While delivering the ruling, the court made it clear that the decision did not remove Parliament’s general authority to legislate on presidential retirement benefits.
Instead, Parliament must exercise that authority within the boundaries established by the Constitution.
The court emphasised that lawmakers cannot rely on provisions that have already been declared unconstitutional to produce consequences prohibited by the Constitution.
The ruling therefore distinguished between Parliament’s power to debate and enact laws and the unlawful use of statutory provisions that conflict with the Constitution.
Court Cites Property and Fair Administrative Rights
The High Court further found that the mechanism provided under Section 4 could conflict with constitutional protections relating to property and fair administrative action.
The court was particularly concerned that retirement benefits already accrued could potentially be taken away or adversely changed without sufficient procedural safeguards.
It held that such an approach would also offend principles of natural justice.
No Order to Quash Parliamentary Motion
Despite the findings against Sections 4 and 6, the court declined to issue an order of certiorari.
This was because there was no completed decision before the court that could be quashed.
An alleged parliamentary motion dated May 4, 2026 was not considered a final decision that had already altered or removed a former President’s retirement benefits.
The court explained that certiorari is used to overturn an existing decision or determination and cannot ordinarily be directed at an action that has not yet been completed.
Instead, prohibition was considered the appropriate remedy because it can prevent unlawful action before it takes effect.
Court Rejects Interference With Parliament
The court also declined to supervise Parliament’s internal proceedings.
Justice Mwamuye noted that completely stopping Parliament from initiating, debating or considering any matter connected to presidential retirement benefits would go beyond what was necessary and could undermine the separation of powers.
Parliament remains free to consider legislation, provided any action it takes complies with the Constitution.
Section 4(4) Remains Intact
The court clarified that its declaration did not extend to Section 4(4).
That provision was not found unconstitutional in the proceedings.
The court also noted that Section 7, which qualifies the operation of Section 4(4), had not been challenged.
The court further declined to grant additional remedies under Articles 43 and 50 of the Constitution, finding that the declarations and prohibition orders already issued were sufficient to address the violations established in the case.
The judgment therefore strengthens constitutional protection around presidential retirement benefits while preserving Parliament’s broader law-making mandate within constitutional limits.
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The ruling draws a clear constitutional line: Parliament can legislate on presidential retirement benefits, but any law it makes must respect protections guaranteed by the Constitution.
