Nairobi: High Court Rejects Bid to Raise Kenya's Mandatory Retirement Age Beyond 60
- The High Court upheld Kenya’s mandatory retirement ages of 60 for most workers and 65 for persons with disabilities, calling them lawful and reasonable
- Petitioner Charles Chege Gitau argued that the policy was discriminatory, encouraged age stereotypes, and failed to tackle youth unemployment
- Justice Lawrence Mugambi ruled that different roles operate under distinct legal frameworks, justifying variations in retirement age
- The court stressed that retirement age is a service condition set by the Public Service Commission, not a constitutional right
Didacus Malowa, a journalist at TUKO.co.ke, brings over three years of experience covering politics and current affairs in Kenya.
Nairobi - The High Court has dismissed a petition seeking to abolish Kenya’s mandatory retirement age.
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It declared that the current limits of 60 years for most employees and 65 years for persons with disabilities are lawful, reasonable, and non-discriminatory.
Why did Gitau want Kenya's retirement changed?
Justice Lawrence Mugambi delivered the ruling in a case filed by Charles Chege Gitau, who claimed the policy violated constitutional rights to equality, dignity, and fair labour practices.
Gitau argued that forcing employees to retire at 60 encouraged stereotypes about the productivity of older workers.
He further stated that it had failed to meaningfully address youth unemployment, and conflicted with existing exemptions for judges, MPs, and senior university researchers.
Gitau also challenged the absence of a set retirement age for legislators and the president, contending that it was discriminatory to compel some public servants to leave at 60 while allowing others to serve beyond 65.
He claimed that the Public Service Regulations, 2020, were inconsistent, as they allowed special treatment for certain categories of employees.
The Federation of Kenya Employers (FKE), listed as the third respondent, opposed the petition, submitting that private sector employers have the autonomy to negotiate their own employment terms with staff.
They argued that retirement age policies are informed by factors such as fiscal realities, sectoral needs, skills availability, and workforce planning.
Why did court rule against extending Kenya's retirement age?
However, Justice Mugambi ruled that the petitioner had failed to demonstrate any unlawful discrimination or arbitrary differentiation in how the policy was applied.
He emphasised that different categories of employees operate under distinct legal and institutional frameworks, which justify variations in retirement age.
"It should be underscored that equality does not directly translate into homogenous treatment, such as that the same retirement age fits all because different categories of employees are governed by different principles and job demands. As long as the differentiation is reasonable, there would be no discrimination," Mugambi said.
The court further found no evidence that judges, legislators, or senior researchers were being unreasonably favoured.
Source: UGC
Who determines Kenya's retirement age?
Instead, Mugambi held that their extended service periods were linked to the specialised demands of their roles.
"The petitioner merely challenged the mandatory retirement age under regulation 70 of the PSC regulations, 2020, only because he disagrees with it without any iota of evidence on its discriminative application," Mugambi ruled.
He stressed that retirement age is not a constitutional right but a service condition set by the employer, in this case, the Public Service Commission (PSC), which is empowered under Article 234 of the Constitution and the PSC Act.
"This petition is thus an attempt to elevate a service condition to a fundamental right by asking the court to upstage and interfere with the mandate of the employer to set service conditions and leave it to discretion of the employee to determine their retirement age. That is not possible, that is a policy matter that vests with the employer," he said.
The judge also noted that both the PSC Act and its regulations allow for post-retirement contracts where rare skills are required and performance is not impaired by age.
Should Kenya's retirement age be reduced?
In a related report, Kenyan MPs pushed for a significant change through the Labour Committee with the Public Service Commission (Amendment) Bill, 2023.
Spearheaded by Embakasi Central’s Benjamin Gathiru, the bill proposed reducing the public service retirement age from 60 to 55 to create more job openings for younger Kenyans.
Its proponents argue this would invigorate public service with fresh talent and prevent prolonged acting stints.
Proofreading by Asher Omondi, copy editor at TUKO.co.ke.
Source: TUKO.co.ke
