High Court bars parliament from reducing former president’s retirement benefits

The High Court has barred Parliament from reducing or withdrawing the retirement benefits of a former president and declared unconstitutional a law that restricts retired heads of state from holding political party office.

In a far-reaching judgment delivered on Monday, Justice Bahati Mwamuye declared Sections 4(1), 4(2), 4(3) and the entirety of Section 6 of the Presidential Retirement Benefits Act unconstitutional, null and void.

The judge held that the Constitution provides stronger protection for a former president’s retirement benefits than Parliament had purported to create through legislation.

The case was filed by civic advocacy group Sheria Mtaani and activist Shadrack Wambui against the Senate, National Assembly and Attorney-General. Senator Kiprotich Cherarkey and the Jubilee Party were enjoined as interested parties.

The petition followed a parliamentary motion dated May 4, 2026, initiated by Senator Cherarkey, seeking to review and vary the retirement benefits of a former president on account of his continued leadership role in the Jubilee Party.

The contention was whether Parliament could use legislation to impose conditions on benefits that the Constitution itself protects.

Justice Mwamuye found that Article 151(3) of the Constitution provides an independent safeguard against varying, to a former president’s disadvantage, retirement benefits payable during their lifetime.

The judge rejected the argument that Parliament could rely on Section 4 of the Presidential Retirement Benefits Act to withhold or reduce such benefits.

The law had provided for benefits to be withheld or reduced following a two-thirds vote of the National Assembly in circumstances including gross misconduct, violation of the Constitution, criminal conviction or holding a political party office.

The court found that ordinary legislation cannot override an express constitutional protection or give Parliament powers that are not permitted by the Constitution.

The court also struck down Section 6, which barred a retired president from holding office in a political party beyond six months after leaving State House.

Justice Mwamuye held that leaving the presidency does not extinguish a person’s citizenship or constitutional political rights.

The judge found that the continued influence of a former president, by itself, does not amount to the exercise of executive authority and cannot be used to create a constitutional disability.

The restriction was found to interfere with political rights protected under Article 38 of the Constitution.

The court further took issue with linking a former president’s pension to political inactivity, finding that such a condition effectively imposed an economic penalty on the exercise of constitutional political rights.

Pension treated as a property right.

The court also held that accrued retirement benefits constitute vested proprietary interests protected under Article 40 of the Constitution.

As a result, such benefits could not be arbitrarily withdrawn or reduced through a statutory mechanism that did not meet constitutional standards.

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Justice Mwamuye further found Section 4 wanting under Article 47, which guarantees fair administrative action.

The provision, the judge held, did not provide adequate safeguards for a former president facing the withdrawal or reduction of benefits, including proper notice of the allegations, disclosure of the case against them and an opportunity to be heard.

Despite declaring the contested provisions unconstitutional, the court declined to issue an order of certiorari to quash the May 4 parliamentary motion.

Justice Mwamuye held that the motion had not resulted in a completed or final decision capable of being quashed through judicial review.

The court instead issued orders prohibiting State organs from enforcing Section 6 or relying on Section 4 to reduce or extinguish a former president’s retirement benefits.

Section 4(4), which deals with benefits payable to a surviving spouse, was left intact.

The judge classified the case as public interest litigation and directed each party to bear its own costs.

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