Introduction
1. The Petition dated 15th February 2024 is supported by the Petitioner’s affidavit in support of similar date and rejoinder dated 6th March 2024.
2. The Petition challenges the 2nd and 3rd Respondents reliance on Section 79 (1) & (2) and 80 of the Public Service Commission Act as read with Section 70 of the Public Service Commission Regulations, 2020 which he contends discriminates and renders jobless classes of people certain age on the basis of mandatory retirement age.
3. The Petitioner argues that the 2nd and 3rd Respondents’ actions are discriminatory and violate Article 27(4) of the Constitution as well as Articles 28, 41(1), 57(a) of the Constitution and are therefore unconstitutional.
4. The Petitioner thus seeks the following reliefs:
a) A declaration that the Respondents jointly and severally violates the Right to equality and freedom from discrimination contrary to Article 27, right to human dignity contrary to Article 28, Article 41 (1) Right to Fair Labour Practices Action, Article 57(a) of the Constitution to fully participate in the affairs of society.
b) A declaration that the mandatory retirement age in both private and public sector is unlawful.
c) An order of mandamus to compel the 1st and 2nd Respondent to remove the legal retirement limit.
d) An order directed at the 2nd and 3rd Respondents compelling the said Respondent to unconditionally allow public and private servants to work beyond the age of 60 years and earn their remuneration thereto.
e) Costs of this Petition.
f) Any other relief or orders that this Court shall deem just and fit to grant.
Petitioner’s Case
5. The Petitioner argues that by dint of Section 79(1) & (2) and 80 of the Public Service Commission Act as read with Section 70 of the Public Service Commission Regulations, the 2nd Respondent sets the mandatory retirement age as 60 years and 65 years for a person living with disability.
6. It is argued that by setting a mandatory retirement age to settle the employment crisis in Kenya, the 2nd Respondent failed the test set out under Article 24(1)(e) of the Constitution. This is because there are other less restrictive options for jobs creation to the youths instead setting a mandatory retirement limit. Furthermore, he argues that Article 55(c) of the Constitution that provides for affirmative action was not meant to cure one discriminative act while creating another that transgresses Article 27(4) of the Constitution.
7. Additionally, the Petitioner postulates that the narrative that old age equals to unproductiveness thus necessitating retirement contradicts Regulation 70 (1)(c) Public Service Regulations,2020 which grants special treatment to senior university lecturers and researchers in particular institutions. Equally, Article 167(1) of the Constitution which sets the retirement age of judges to 70 years and Article 137 of the Constitution regarding the President of Kenya.
8. The Petitioner also adds that members of the National Assembly and Senate do not have a retirement age. Likewise, it was noted that the 2nd Respondent’s Chairman who was 63 years at the time had carried out his duties in the most prudent manner even causing the 2nd Respondent to receive accolades both locally and internationally. Thus, in sum this argument is adjudged to be unfounded.
9. The Petitioner further alleges that the 3rd Respondent has also relied on the impugned provisions meant for the public sector to force its personnel to also retire at these ages, yet the same lacks rational legal basis.
10. The Petitioner on this premise brings this claim against the impugned provisions and contends that the mandatory retirement age in both the private and public sector is unlawful.
1st Respondents’ Case
11. In response to the Petitioner’s case, the 1st Respondent filed grounds of opposition dated 30th July 2024 on the basis that:
i. This Court lacks jurisdiction to hear and determine this Petition as the Petitioner’s claim can be remedied at the Employment and Labour Relations Court established under Article 162 of the Constitution as read together with Section 12 of the Employment and Labour Relations Court Act. In the case of Samuel Kamau Macharia & Another vs Kenya Commercial Bank Ltd & Another, the Court held that a Courts Jurisdiction flows from either the Constitution or Legislation or both. Thus, a Court of law can only exercise Jurisdiction as conferred by the Constitution or other written Law. It cannot arrogate itself Jurisdiction exceeding that which is conferred upon it by Law.
ii. The issue of employees’ retirement upon attainment of 60 years falls within the purview of the Employment and Labour Relations Court as stated in the case of National Social Security Fund Board of Trustees v Kenya Tea Growers Association & 14 others that the Employment and Labour Relations Court has jurisdiction to hear and determine constitutional issues that arise from an employer-employee dispute.
iii. The Petition is incompetent and misconceived as the Petitioner has not demonstrated with precision how their constitutional rights have been violated thus falling short of the threshold in Mumo Matemu Vs Trusted Society of Human Rights Alliance and 5 Others (2003) eKLR.
iv. The Petition is frivolous, vexatious and an abuse of the Court process.
12. The 1st Respondent indicated that it had a Preliminary Objection however the same is not in the Court file or Court Online Platform (CTS).
2nd Respondent’s Case
13. In response to the Petition, the 2nd Respondent also filed grounds of opposition dated 28th February 2024 on the premise that:
i. The 2nd Respondent is a constitutional Commission established under Article 233 of the Constitution with its functions and powers provided for in Article 234 of the Constitution.
ii. Pursuant Article 234(2)(j) of the Constitution, Parliament conferred powers to the Commission in the Public Service Commission Act, 2017 and made further provisions with regard to the management of human resource in the public service.
iii. Section 79(1)(a) of the Public Service Commission Act provides that a public officer may retire from the public service on attainment of the mandatory retirement age as may be prescribed by regulation.
iv. Section 80(1)(a) of the same Act provides that upon attainment of the mandatory retirement age as prescribed in regulations; a public officer shall retire from the service with effect from the date of attaining the mandatory retirement age.
v. Section 92 of the Public Service Commission Act gives power to the Commission to make regulations for the better carrying into effect the provisions of the Act. Pursuant to this power, the Commission made the Public Service Commission Regulations, 2020.
vi. Regulation 70 of the said Regulations prescribes the mandatory retirement age as 60 years and 65 years for persons with disability.
vii. Article 27 of the Constitution is not an absolute right and may be limited by legislation pursuant to the provisions of Article 24 of the Constitution.
viii. Article 24 (1) (d) of the Constitution allows the limitation of rights taking into account the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others.
ix. Article 55(c) of the Constitution provides that the State shall take measures, including affirmative action programmes, to ensure that the youth access employment.
x. Additionally, Article 27(6) of the Constitution provides that the State shall take legislative and other measures, including affirmative action programmes and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination.
xi. With regard to employment, while all persons have a right to employment, there is always need to balance the right of employment of the youth and the right of employment of other older persons in the society. It is for this reason that employment in the public service cannot be for life as the State is required by the Constitution to provide employment for the youth through affirmative action programmes and policies including the policy on a specific retirement age in the public service that would give opportunity to the youth to also be employed to serve in the public service.
xii. The provisions of Sections 79 and 80 of the Public Service Commission Act and Regulation 70 of the Public Service Commission Regulations are therefore in conformity with the provisions of Articles 24, 27(6) and 55(c) of the Constitution as the State has an obligation to ensure employment opportunities for the youth.
xiii. Allowing this Petition would have the effect of allowing persons to work until death in old age which is not humanly possible as the ability of a human being to be productive both physically and mentally diminishes with age.
xiv. Additionally, the effect of allowing this Petition would be to lock out the youth from employment as there would be none or limited opportunities for employment if employees were to be allowed to work until death in old age.
xv. This Petition is therefore misconceived and lacking in merit and should be dismissed with costs to the 2nd Respondent.
3rd Respondent’s Case
14. The 3rd Respondent’s response to the Petition is not in the Court file or Court Online Platform (CTS) however, this party made a response through its written submissions.
Petitioner’s Submissions
15. The Petitioner filed submissions dated 9th July 2024 and underscored the issue for determination as: whether Section 79(1), Section 80(1) of Public Service Commission Act No 10 of 2017 and Section 70 of Public Service Regulations of 2020 is unconstitutional by dint of Article 27(4) of the Constitution.
16. The Petitioner submitted that the Constitution under Article 27(4) of the Constitution prohibits the State from discriminating directly or indirectly against any person by virtue of age in this matter. In making this determination Counsel submitted that the Court be guided by principle in U.S. vs Butler 297 U.S. 1 (1936).
17. The Petitioner argued that a reading of Article 27(4) of the Constitution against the impugned provisions makes it plain that they are discriminatory on the basis of age. It was argued that the discrimination was not justified by the 2nd Respondent as is required under Article 24 of the Constitution.
18. Reliance was placed in Muslims for Human Rights (MUHURI) & another v Inspector-General of Police & 5 others [2015] eKLR where it was held that where a party invokes Article 24(1) of the Constitution as its solace for violating a right the party is still bound to satisfy the Court on all other elements of Article 24(1) that the justification is reasonable in an open and democratic society.
19. The Petitioner contended that the discrimination was not justified as the 2nd Respondent had not provided any statistics, law or regulations that shows that for every retiring person the position is strictly occupied by a youth. As such, the differentiation on the ground of age by the 2nd Respondent is stressed to be contrary to the legitimate government purpose as seen in Sali vs. National Commissioner of the South African Police Service and Others [2014] ZACC 19.
20. Reiterating his averments in the Petition, the Petitioner argued that the impugned provisions are contradictory to Regulation 70(1) (c) of the Public Service Regulations, 2020, Article 137 and 167(1) of the Constitution.
21. The Petitioner submitted that the Respondents should consider comparative jurisdictions such as United Kingdom, United States of America, Canada among others as a bench mark on the topic of mandatory retirement age. Reliance was placed in Mboya v Attorney General; National Employment Authority (Interested Party) (Petition E335 of 2023) [2024] KEHC 2240 (KLR) where it was held that:
“Discrimination on grounds of age is explicitly proscribed by the Constitution. In addition, the National Employment Authority Act lists one of its objectives under Section 3 (e) as being to “facilitate and promote equity and diversity, and eliminate discrimination in the employment of Kenyans.” It is therefore a paradox that the same Act goes ahead to make a daring move of dividing Kenyans in the working age population along the line of age by isolating a certain age category for grant of an employment opportunity while excluding the other from that opportunity in flagrant violation of an express Constitutional provision. Affirmative action is not an excuse for violating an undoubted constitutional principle however well-meaning it might be. I find that Section 17 (2) (d) of the National Employment Authority Act No. 3 of 2016 contravenes the principle of providing equal access of opportunities to Kenyans in the working age population. It is discriminatory, unconscionable, null and void.”
22. Like dependence was placed in Githunguri vs. Republic KLR (1986).
23. The Petitioner in conclusion maintained that the impugned provisions are unconstitutional as violate Article 27(4) of the Constitution.
1st Respondent’s Submissions
24. The 1st Respondent in opposition to the Petition filed submissions dated 30th July 2024 to its Preliminary Objection and set out the single issue for discussion as: whether this Court has jurisdiction on the matter.
25. Counsel relying in Owners of the Motor Vessel “Lillian S’ v. Caltex Oil (Kenya) Ltd [1989] KLR 1 emphasized that jurisdiction is everything as without it a Court has no power to make one more step. In this regard, Counsel argued that this Court lacks jurisdiction to entertain the matter by virtue of Article 162 (2) of the Constitution as read with Section 12 of the Employment and Labour Relations Court Act which grants the Employment and Labour Relations Court jurisdiction to entertain such disputes.
26. Counsel relied in Jane Frances Angalia v Masinde Muliro University of Science and Technology and Others (2010) eKLR where it was observed that Courts of equal status as the High Court have jurisdiction to deal with any constitutional issue in a matter in which they have jurisdiction over.
27. Counsel submitted that the Petitioner challenges the mandatory retirement age which falls under the purview of the Employment and Labour Relations Court. Reliance was placed in Sollo Nzuki vs. Salaries and Remuneration Commission & 2 others (2019) eKLR where the Court held that:
“51. Similarly, pursuant to Article 23(3) of the Constitution as read with Section 12(3) of the Employment and Labour Relations Court Act, it is my view that the Employment and Labour Relations Court can grant reliefs in a constitutional petition. However, the jurisdiction to do so is confined to matters falling within Article 41 of the Constitution as read with section 12 of the Employment and Labour Relations Court Act. The Court cannot therefore purport to entertain petitions outside the aforesaid matters as its jurisdiction is limited only in so far as employment matter and matters related thereto are concerned. In my view the matters which fall within the ambit of Article 162(2) of the Constitution must be matters within the exclusive jurisdiction of the said specialized courts. However, as stated above, the Employment and Labour Relations Court may not embark on a generalized handling of Petitions but is entitled to and is jurisdictionally empowered to address such matters if they arise directly and in relation to the matters within the court’s jurisdictional competence and specialization. Accordingly, where the matters raised fall both within their jurisdiction and outside, it would be a travesty of justice for the High Court to decline jurisdiction since it would mean that in that event a litigant would be forced to institute two sets of legal proceedings. Such eventuality would do violence to the provision of Article 159 of the Constitution.”
28. Similar dependence was placed in Law Society of Kenya v Federation of Kenya Employers [2021] eKLR.
2nd Respondent’s Submissions
29. The 2nd Respondent’s Counsel, Jacqueline Manani filed submissions dated 18th November 2024 and highlighted the issue for discussion as: whether Sections 79(1) and 80 of the PSC Act and Regulation 70 of the PSC Regulations violate Articles 27(4), 28 and 41(1) of the Constitution.
30. Counsel commenced by stating that every Act of Parliament is presumed constitutional and the burden to prove otherwise lies on the Petitioner. Counsel noted that in determining this question the Court is to be guided by the object, purpose and effect of the impugned provisions.
31. Reliance was placed in Institute of Social Accountability & another v National Assembly & 4 others [2015] KEHC 6975 (KLR) where it was held that:
“This Court is enjoined under Article 259 of the Constitution to interpret the Constitution in a manner that promotes its purposes, values and principles, advances the rule of law, human rights and fundamental freedoms in the Bill of Rights and that contributes to good governance. In exercising its judicial authority, this Court is obliged under Article 159(2)(e) of the Constitution to protect and promote the purpose and principles of the Constitution.”
32. Counsel submitted that the Petitioner had failed to discharge the burden of proving that the impugned provisions are unconstitutional. Counsel contended that the Petitioner had argued that the provisions are discriminatory yet failed to make a comparison against what the discrimination was claimed to be. To support this point, reliance was placed in Gichuru v Package Insurance Brokers Ltd [2021] KESC 12 (KLR) where it was held that:
“discrimination can be said to have occurred where a person is treated differently from other persons who are in similar positions on the basis of one of the prohibited grounds like race, sex, disability etc or due to unfair practice and without any objective and reasonable justification.”
33. Counsel submitted that the issue in contention is the existence of a mandatory retirement age in both the private and public sector. Counsel pointed out that there was no allegation that there are certain categories of Kenyans who retire later thereby discriminating against another category of Kenyans who retire at 60 and 65 years. As such, Counsel stressed that it was clear that that all Kenyans are treated equally on this subject thus the claim of discrimination is unsubstantiated and further not proved as alleged.
34. Counsel added that the Petitioner had not demonstrated how retirement of all persons at the age of 60 or 65 causes them to be marginalized, ignored or devalued. Counsel posited that on the contrary, it is the Kenyan youth who would be marginalized, ignored or devalued if this Court were to find that there should not be a retirement age.
35. Counsel in like manner submitted that the Petition in alleging violation of Article 28 of the Constitution had failed to demonstrate how the provisions on retirement age violate the right to human dignity. Similar arguments were registered in relation to Article 41(1) of the Constitution. Reliance was placed in Law v Cananda (Ministry of Employment and Immigration), 1999 (1) RCS where it was held that:
“Human dignity is harmed when individuals and groups are marginalized, ignored or devalued, and it is enhanced when laws recognize the full place of all individuals and groups within society.”
36. Counsel noted that prior to acceptance of employment terms either on permanent and pensionable, a person either accepts or declines the terms. As such a person is bound by the contract terms thereafter. Counsel contended that there was nothing unconstitutional about providing certainty by stating the duration of an employment contract and providing a term limit.
37. Counsel equally pointed out that the Constitution also sets a time limit for Judges under Article 167(1) of the Constitution. In this regard, Counsel postulated that should this Court find that the impugned provisions are unconstitutional it would then mean that this Article is also unconstitutional for setting a time limit for retirement.
38. In sum, Counsel submitted that the Petitioner had failed to meet the threshold for a finding that the impugned provisions violate the Constitution and thus Petition lacks merit.
3rd Respondent’s Submissions
39. The 3rd Respondent in opposition to the Petition filed submissions dated 11th March 2025.
40. The 3rd Respondent contended that the set mandatory retirement age by the 2nd Respondent is not discriminatory and is in line with its mandate as empowered under Article 233 of the Constitution and as read with Section 92(2)(f) of the Public Service Commission Act.
41. Furthermore, Counsel submitted that the International Labour Organization (ILO) similarly recognizes the legitimacy of the mandatory retirement ages set by national governments as provided under Paragraph 5 (2) of the Older Workers Recommendation, 1980 (No. 162). This is also echoed under Article 1 (2) of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111).
42. It was noted that while the ILO, advocates against unjust age discrimination, it acknowledges that setting a mandatory retirement age does not inherently constitute discrimination, provided it is justified by legitimate objectives and established through national laws or policies.
43. The 3rd Respondent further submitted that the Courts have held that the retirement age must accord with the national ethos and policies in place that answer to various parameters including micro and macro-economic dynamics, sectoral needs, considerations for individuals with special and rare skills and knowledge, pension scheme administration among others.
44. Dependence was placed in Inter Public Universities Councils Consultative Forum of the Federation of Kenya Employers v Kenya Union of Domestic, Hotels, Education Institutions and Hospital Workers (KUDHEIHA) & 2 others; Ministry of Education & 3 others (Interested Parties) [2021] KEELRC 2298 (KLR) where it was held that:
“The SRC guidelines which this court is enjoined to consider while dealing with matters that fall under the purview of SRC, provide that among the parameters to be considered in negotiations are Government Polices and Guidelines. The SRC guidelines provide –
8. Government Policies and Guidelines: Collective Bargaining Negotiations should adhere to existing policies and guidelines such as the Minimum Wage Guidelines/ Public Service Commission Human Resource Policies and Procedures Manual State Corporation guidelines and various SRC advisories.
Parties can therefore not negotiate outside public policy and guidelines.
For these reasons the proposals for amendment of retirement age are expunged from the CBAs. The current practice as set out in the pension schemes for universities/ the policies and guidelines in place and the provisions of any law that governs retirement age in the public sector shall apply.”
45. The 3rd Respondent moreover contended that the Petitioner’s allegations on discrimination concerning the mandatory retirement age had not been substantiated thus this burden had not been discharged in line with Section 109 of the Evidence Act.
46. The 3rd Respondent noted that the 2nd Respondent is primarily responsible for overseeing human resource development within the public sector while the 3rd Respondent operates within a different legal framework governed by the Employment Act. In essence, it was noted that the private sector employers have the autonomy to establish their own employment terms through their agreements with their employees. To that end, Counsel submitted that the Petition lacks merit.
Analysis and Determination
47. It is my considered take that the issues that arise for determination in this matter are as follows:
i. Whether this Court has jurisdiction to entertain this matter.
ii. Whether Sections 79(1) and 80 of the PSC Act and Regulation 70 of the PSC Regulations are unlawful and unconstitutional in view of Articles 27(4), 28 and 41(1) of the Constitution.
iii. Whether the Petitioner is entitled to the relief sought.
1st issue- Whether this Court has jurisdiction to entertain this matter
48. The 1st Respondent contended that this Court lacks jurisdiction to hear and determine this matter citing Article 162 (2) of the Constitution as read with Section 12 of the Employment and Labour Relations Court Act which grants the Employment and Labour Relations. The 1st Respondent argued that a dispute on mandatory retirement age falls within the jurisdictional competence of the Employment and Labour Relations Court and given the reasoning in Sollo Nzuki vs. Salaries and Remuneration Commission & 2 others (2019) eKLR .
49. The Supreme Court In the Matter of the Interim Independent Electoral Commission [2011] KESC 1(KLR) guided as follows:
“Assumption of jurisdiction by Courts in Kenya is a subject regulated by the Constitution, by statute law, and by principles laid out in judicial precedent. The classic decision in this regard is the Court of Appeal decision in Owners of Motor Vessel ‘Lillian S’ v. Caltex Oil (Kenya) Limited [1989] KLR 1, which bears the following passage (Nyarangi, JA at p.14):“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the Court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a Court has no power to make one more step.”[30] The Lillian ‘S’ case establishes that jurisdiction flows from the law, and the recipient-Court is to apply the same, with any limitations embodied therein. Such a Court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavours to discern or interpret the intentions of Parliament, where the wording of legislation is clear and there is no ambiguity. In the case of the Supreme Court, Court of Appeal and High Court, their respective jurisdictions are donated by the Constitution.”
50. In the same way the Court of Appeal speaking to this issue in Kakuta Maimai Hamisi v Peris Pesi Tobiko & 2 others [2013] KEHC 5855 (KLR) opined as follows:
“So central and determinative is the question of jurisdiction that it is at once fundamental and over-arching as far as any judicial proceeding is concerned. It is a threshold question and best taken at inception. It is definitive and determinative and prompt pronouncement on it, once it appears to be in issue, is a desideratum imposed on courts out of a decent respect for economy and efficiency and a necessary eschewing of a polite but ultimately futile undertaking of proceedings that will end in barren cul de sac. Courts, like nature, must not act and must not sit in vain.
The proper place of jurisdiction and the necessity to deal with it as the first order of business before an enquiry into merits of a cause was best captured in the case of The Owners Of The Motor Vessel Lillian ‘S’ Vs. Caltex Kenya Ltd [1989] KLR 1.”
51. The jurisdiction of the special courts is provided for under Article 162(2)(b) of the Constitution which states as follows:
1) The superior courts are the Supreme Court, the Court of Appeal, the High Court and the courts mentioned in clause (2).
2) Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to—
a) employment and labour relations; and
b) the environment and the use and occupation of, and title to, land.
3) Parliament shall determine the jurisdiction and functions of the courts contemplated in clause (2).
52. To give effect to Article 162 (3); Parliament enacted the Employment and Labour Relations Act in which section 12 defines the jurisdiction of the Court as follows:
1) The Court shall have exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with Article 162(2) of the Constitution and the provisions of this Act or any other written law which extends jurisdiction to the Court relating to employment and labour relations including—
a. disputes relating to or arising out of employment between an employer and an employee;
b. disputes between an employer and a trade union;
c. disputes between an employers’ organisation and a trade union’s organisation;
d. disputes between trade unions;
e. disputes between employer organisations;
f. disputes between an employers’ organisation and a trade union;
g. disputes between a trade union and a member thereof;
h. disputes between an employer’s organisation or a federation and a member thereof;
i. disputes concerning the registration and election of trade union officials; and
j. disputes relating to the registration and enforcement of collective agreements.
53. The Court in Sollo Nzuki (supra) rendered itself thus:
“Similarly, pursuant to Article 23(3) of the Constitution as read with section 12(3) of the Employment and Labour Relations Court Act, it is my view that the Employment and Labour Relations Court can grant reliefs in a constitutional petition. However, the jurisdiction to do so is confined to matters falling within Article 41 of the Constitution as read with section 12 of the Employment and Labour Relations Court Act. The Court cannot therefore purport entertain petitions outside the aforesaid matters as its jurisdiction is limited only in so far as employment matters and matters related thereto are concerned. In my view the matters which fall within the ambit of Article 162(2) of the Constitution must be matters within the exclusive jurisdiction of the said specialized Courts. However, as stated above, the Employment and Labour Relations Court may not embark on a generalized handling of petitions but is entitled to and is jurisdictionally empowered to address such matters if they arise directly and in relation to the matters within the court’s jurisd
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1. The Petition dated 15th February 2024 is supported by the Petitioner’s affidavit in support of similar date and rejoinder dated 6th March 2024.
2. The Petition challenges the 2nd and 3rd Respondents reliance on Section 79 (1) & (2) and 80 of the Public Service Commission Act as read with Section 70 of the Public Service Commission Regulations, 2020 which he contends discriminates and renders jobless classes of people certain age on the basis of mandatory retirement age.
3. The Petitioner argues that the 2nd and 3rd Respondents’ actions are discriminatory and violate Article 27(4) of the Constitution as well as Articles 28, 41(1), 57(a) of the Constitution and are therefore unconstitutional.
4. The Petitioner thus seeks the following reliefs:
a) A declaration that the Respondents jointly and severally violates the Right to equality and freedom from discrimination contrary to Article 27, right to human dignity contrary to Article 28, Article 41 (1) Right to Fair Labour Practices Action, Article 57(a) of the Constitution to fully participate in the affairs of society.
b) A declaration that the mandatory retirement age in both private and public sector is unlawful.
c) An order of mandamus to compel the 1st and 2nd Respondent to remove the legal retirement limit.
d) An order directed at the 2nd and 3rd Respondents compelling the said Respondent to unconditionally allow public and private servants to work beyond the age of 60 years and earn their remuneration thereto.
e) Costs of this Petition.
f) Any other relief or orders that this Court shall deem just and fit to grant.
Petitioner’s Case
5. The Petitioner argues that by dint of Section 79(1) & (2) and 80 of the Public Service Commission Act as read with Section 70 of the Public Service Commission Regulations, the 2nd Respondent sets the mandatory retirement age as 60 years and 65 years for a person living with disability.
6. It is argued that by setting a mandatory retirement age to settle the employment crisis in Kenya, the 2nd Respondent failed the test set out under Article 24(1)(e) of the Constitution. This is because there are other less restrictive options for jobs creation to the youths instead setting a mandatory retirement limit. Furthermore, he argues that Article 55(c) of the Constitution that provides for affirmative action was not meant to cure one discriminative act while creating another that transgresses Article 27(4) of the Constitution.
7. Additionally, the Petitioner postulates that the narrative that old age equals to unproductiveness thus necessitating retirement contradicts Regulation 70 (1)(c) Public Service Regulations,2020 which grants special treatment to senior university lecturers and researchers in particular institutions. Equally, Article 167(1) of the Constitution which sets the retirement age of judges to 70 years and Article 137 of the Constitution regarding the President of Kenya.
8. The Petitioner also adds that members of the National Assembly and Senate do not have a retirement age. Likewise, it was noted that the 2nd Respondent’s Chairman who was 63 years at the time had carried out his duties in the most prudent manner even causing the 2nd Respondent to receive accolades both locally and internationally. Thus, in sum this argument is adjudged to be unfounded.
9. The Petitioner further alleges that the 3rd Respondent has also relied on the impugned provisions meant for the public sector to force its personnel to also retire at these ages, yet the same lacks rational legal basis.
10. The Petitioner on this premise brings this claim against the impugned provisions and contends that the mandatory retirement age in both the private and public sector is unlawful.
1st Respondents’ Case
11. In response to the Petitioner’s case, the 1st Respondent filed grounds of opposition dated 30th July 2024 on the basis that:
i. This Court lacks jurisdiction to hear and determine this Petition as the Petitioner’s claim can be remedied at the Employment and Labour Relations Court established under Article 162 of the Constitution as read together with Section 12 of the Employment and Labour Relations Court Act. In the case of Samuel Kamau Macharia & Another vs Kenya Commercial Bank Ltd & Another, the Court held that a Courts Jurisdiction flows from either the Constitution or Legislation or both. Thus, a Court of law can only exercise Jurisdiction as conferred by the Constitution or other written Law. It cannot arrogate itself Jurisdiction exceeding that which is conferred upon it by Law.
ii. The issue of employees’ retirement upon attainment of 60 years falls within the purview of the Employment and Labour Relations Court as stated in the case of National Social Security Fund Board of Trustees v Kenya Tea Growers Association & 14 others that the Employment and Labour Relations Court has jurisdiction to hear and determine constitutional issues that arise from an employer-employee dispute.
iii. The Petition is incompetent and misconceived as the Petitioner has not demonstrated with precision how their constitutional rights have been violated thus falling short of the threshold in Mumo Matemu Vs Trusted Society of Human Rights Alliance and 5 Others (2003) eKLR.
iv. The Petition is frivolous, vexatious and an abuse of the Court process.
12. The 1st Respondent indicated that it had a Preliminary Objection however the same is not in the Court file or Court Online Platform (CTS).
2nd Respondent’s Case
13. In response to the Petition, the 2nd Respondent also filed grounds of opposition dated 28th February 2024 on the premise that:
i. The 2nd Respondent is a constitutional Commission established under Article 233 of the Constitution with its functions and powers provided for in Article 234 of the Constitution.
ii. Pursuant Article 234(2)(j) of the Constitution, Parliament conferred powers to the Commission in the Public Service Commission Act, 2017 and made further provisions with regard to the management of human resource in the public service.
iii. Section 79(1)(a) of the Public Service Commission Act provides that a public officer may retire from the public service on attainment of the mandatory retirement age as may be prescribed by regulation.
iv. Section 80(1)(a) of the same Act provides that upon attainment of the mandatory retirement age as prescribed in regulations; a public officer shall retire from the service with effect from the date of attaining the mandatory retirement age.
v. Section 92 of the Public Service Commission Act gives power to the Commission to make regulations for the better carrying into effect the provisions of the Act. Pursuant to this power, the Commission made the Public Service Commission Regulations, 2020.
vi. Regulation 70 of the said Regulations prescribes the mandatory retirement age as 60 years and 65 years for persons with disability.
vii. Article 27 of the Constitution is not an absolute right and may be limited by legislation pursuant to the provisions of Article 24 of the Constitution.
viii. Article 24 (1) (d) of the Constitution allows the limitation of rights taking into account the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others.
ix. Article 55(c) of the Constitution provides that the State shall take measures, including affirmative action programmes, to ensure that the youth access employment.
x. Additionally, Article 27(6) of the Constitution provides that the State shall take legislative and other measures, including affirmative action programmes and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination.
xi. With regard to employment, while all persons have a right to employment, there is always need to balance the right of employment of the youth and the right of employment of other older persons in the society. It is for this reason that employment in the public service cannot be for life as the State is required by the Constitution to provide employment for the youth through affirmative action programmes and policies including the policy on a specific retirement age in the public service that would give opportunity to the youth to also be employed to serve in the public service.
xii. The provisions of Sections 79 and 80 of the Public Service Commission Act and Regulation 70 of the Public Service Commission Regulations are therefore in conformity with the provisions of Articles 24, 27(6) and 55(c) of the Constitution as the State has an obligation to ensure employment opportunities for the youth.
xiii. Allowing this Petition would have the effect of allowing persons to work until death in old age which is not humanly possible as the ability of a human being to be productive both physically and mentally diminishes with age.
xiv. Additionally, the effect of allowing this Petition would be to lock out the youth from employment as there would be none or limited opportunities for employment if employees were to be allowed to work until death in old age.
xv. This Petition is therefore misconceived and lacking in merit and should be dismissed with costs to the 2nd Respondent.
3rd Respondent’s Case
14. The 3rd Respondent’s response to the Petition is not in the Court file or Court Online Platform (CTS) however, this party made a response through its written submissions.
Petitioner’s Submissions
15. The Petitioner filed submissions dated 9th July 2024 and underscored the issue for determination as: whether Section 79(1), Section 80(1) of Public Service Commission Act No 10 of 2017 and Section 70 of Public Service Regulations of 2020 is unconstitutional by dint of Article 27(4) of the Constitution.
16. The Petitioner submitted that the Constitution under Article 27(4) of the Constitution prohibits the State from discriminating directly or indirectly against any person by virtue of age in this matter. In making this determination Counsel submitted that the Court be guided by principle in U.S. vs Butler 297 U.S. 1 (1936).
17. The Petitioner argued that a reading of Article 27(4) of the Constitution against the impugned provisions makes it plain that they are discriminatory on the basis of age. It was argued that the discrimination was not justified by the 2nd Respondent as is required under Article 24 of the Constitution.
18. Reliance was placed in Muslims for Human Rights (MUHURI) & another v Inspector-General of Police & 5 others [2015] eKLR where it was held that where a party invokes Article 24(1) of the Constitution as its solace for violating a right the party is still bound to satisfy the Court on all other elements of Article 24(1) that the justification is reasonable in an open and democratic society.
19. The Petitioner contended that the discrimination was not justified as the 2nd Respondent had not provided any statistics, law or regulations that shows that for every retiring person the position is strictly occupied by a youth. As such, the differentiation on the ground of age by the 2nd Respondent is stressed to be contrary to the legitimate government purpose as seen in Sali vs. National Commissioner of the South African Police Service and Others [2014] ZACC 19.
20. Reiterating his averments in the Petition, the Petitioner argued that the impugned provisions are contradictory to Regulation 70(1) (c) of the Public Service Regulations, 2020, Article 137 and 167(1) of the Constitution.
21. The Petitioner submitted that the Respondents should consider comparative jurisdictions such as United Kingdom, United States of America, Canada among others as a bench mark on the topic of mandatory retirement age. Reliance was placed in Mboya v Attorney General; National Employment Authority (Interested Party) (Petition E335 of 2023) [2024] KEHC 2240 (KLR) where it was held that:
“Discrimination on grounds of age is explicitly proscribed by the Constitution. In addition, the National Employment Authority Act lists one of its objectives under Section 3 (e) as being to “facilitate and promote equity and diversity, and eliminate discrimination in the employment of Kenyans.” It is therefore a paradox that the same Act goes ahead to make a daring move of dividing Kenyans in the working age population along the line of age by isolating a certain age category for grant of an employment opportunity while excluding the other from that opportunity in flagrant violation of an express Constitutional provision. Affirmative action is not an excuse for violating an undoubted constitutional principle however well-meaning it might be. I find that Section 17 (2) (d) of the National Employment Authority Act No. 3 of 2016 contravenes the principle of providing equal access of opportunities to Kenyans in the working age population. It is discriminatory, unconscionable, null and void.”
22. Like dependence was placed in Githunguri vs. Republic KLR (1986).
23. The Petitioner in conclusion maintained that the impugned provisions are unconstitutional as violate Article 27(4) of the Constitution.
1st Respondent’s Submissions
24. The 1st Respondent in opposition to the Petition filed submissions dated 30th July 2024 to its Preliminary Objection and set out the single issue for discussion as: whether this Court has jurisdiction on the matter.
25. Counsel relying in Owners of the Motor Vessel “Lillian S’ v. Caltex Oil (Kenya) Ltd [1989] KLR 1 emphasized that jurisdiction is everything as without it a Court has no power to make one more step. In this regard, Counsel argued that this Court lacks jurisdiction to entertain the matter by virtue of Article 162 (2) of the Constitution as read with Section 12 of the Employment and Labour Relations Court Act which grants the Employment and Labour Relations Court jurisdiction to entertain such disputes.
26. Counsel relied in Jane Frances Angalia v Masinde Muliro University of Science and Technology and Others (2010) eKLR where it was observed that Courts of equal status as the High Court have jurisdiction to deal with any constitutional issue in a matter in which they have jurisdiction over.
27. Counsel submitted that the Petitioner challenges the mandatory retirement age which falls under the purview of the Employment and Labour Relations Court. Reliance was placed in Sollo Nzuki vs. Salaries and Remuneration Commission & 2 others (2019) eKLR where the Court held that:
“51. Similarly, pursuant to Article 23(3) of the Constitution as read with Section 12(3) of the Employment and Labour Relations Court Act, it is my view that the Employment and Labour Relations Court can grant reliefs in a constitutional petition. However, the jurisdiction to do so is confined to matters falling within Article 41 of the Constitution as read with section 12 of the Employment and Labour Relations Court Act. The Court cannot therefore purport to entertain petitions outside the aforesaid matters as its jurisdiction is limited only in so far as employment matter and matters related thereto are concerned. In my view the matters which fall within the ambit of Article 162(2) of the Constitution must be matters within the exclusive jurisdiction of the said specialized courts. However, as stated above, the Employment and Labour Relations Court may not embark on a generalized handling of Petitions but is entitled to and is jurisdictionally empowered to address such matters if they arise directly and in relation to the matters within the court’s jurisdictional competence and specialization. Accordingly, where the matters raised fall both within their jurisdiction and outside, it would be a travesty of justice for the High Court to decline jurisdiction since it would mean that in that event a litigant would be forced to institute two sets of legal proceedings. Such eventuality would do violence to the provision of Article 159 of the Constitution.”
28. Similar dependence was placed in Law Society of Kenya v Federation of Kenya Employers [2021] eKLR.
2nd Respondent’s Submissions
29. The 2nd Respondent’s Counsel, Jacqueline Manani filed submissions dated 18th November 2024 and highlighted the issue for discussion as: whether Sections 79(1) and 80 of the PSC Act and Regulation 70 of the PSC Regulations violate Articles 27(4), 28 and 41(1) of the Constitution.
30. Counsel commenced by stating that every Act of Parliament is presumed constitutional and the burden to prove otherwise lies on the Petitioner. Counsel noted that in determining this question the Court is to be guided by the object, purpose and effect of the impugned provisions.
31. Reliance was placed in Institute of Social Accountability & another v National Assembly & 4 others [2015] KEHC 6975 (KLR) where it was held that:
“This Court is enjoined under Article 259 of the Constitution to interpret the Constitution in a manner that promotes its purposes, values and principles, advances the rule of law, human rights and fundamental freedoms in the Bill of Rights and that contributes to good governance. In exercising its judicial authority, this Court is obliged under Article 159(2)(e) of the Constitution to protect and promote the purpose and principles of the Constitution.”
32. Counsel submitted that the Petitioner had failed to discharge the burden of proving that the impugned provisions are unconstitutional. Counsel contended that the Petitioner had argued that the provisions are discriminatory yet failed to make a comparison against what the discrimination was claimed to be. To support this point, reliance was placed in Gichuru v Package Insurance Brokers Ltd [2021] KESC 12 (KLR) where it was held that:
“discrimination can be said to have occurred where a person is treated differently from other persons who are in similar positions on the basis of one of the prohibited grounds like race, sex, disability etc or due to unfair practice and without any objective and reasonable justification.”
33. Counsel submitted that the issue in contention is the existence of a mandatory retirement age in both the private and public sector. Counsel pointed out that there was no allegation that there are certain categories of Kenyans who retire later thereby discriminating against another category of Kenyans who retire at 60 and 65 years. As such, Counsel stressed that it was clear that that all Kenyans are treated equally on this subject thus the claim of discrimination is unsubstantiated and further not proved as alleged.
34. Counsel added that the Petitioner had not demonstrated how retirement of all persons at the age of 60 or 65 causes them to be marginalized, ignored or devalued. Counsel posited that on the contrary, it is the Kenyan youth who would be marginalized, ignored or devalued if this Court were to find that there should not be a retirement age.
35. Counsel in like manner submitted that the Petition in alleging violation of Article 28 of the Constitution had failed to demonstrate how the provisions on retirement age violate the right to human dignity. Similar arguments were registered in relation to Article 41(1) of the Constitution. Reliance was placed in Law v Cananda (Ministry of Employment and Immigration), 1999 (1) RCS where it was held that:
“Human dignity is harmed when individuals and groups are marginalized, ignored or devalued, and it is enhanced when laws recognize the full place of all individuals and groups within society.”
36. Counsel noted that prior to acceptance of employment terms either on permanent and pensionable, a person either accepts or declines the terms. As such a person is bound by the contract terms thereafter. Counsel contended that there was nothing unconstitutional about providing certainty by stating the duration of an employment contract and providing a term limit.
37. Counsel equally pointed out that the Constitution also sets a time limit for Judges under Article 167(1) of the Constitution. In this regard, Counsel postulated that should this Court find that the impugned provisions are unconstitutional it would then mean that this Article is also unconstitutional for setting a time limit for retirement.
38. In sum, Counsel submitted that the Petitioner had failed to meet the threshold for a finding that the impugned provisions violate the Constitution and thus Petition lacks merit.
3rd Respondent’s Submissions
39. The 3rd Respondent in opposition to the Petition filed submissions dated 11th March 2025.
40. The 3rd Respondent contended that the set mandatory retirement age by the 2nd Respondent is not discriminatory and is in line with its mandate as empowered under Article 233 of the Constitution and as read with Section 92(2)(f) of the Public Service Commission Act.
41. Furthermore, Counsel submitted that the International Labour Organization (ILO) similarly recognizes the legitimacy of the mandatory retirement ages set by national governments as provided under Paragraph 5 (2) of the Older Workers Recommendation, 1980 (No. 162). This is also echoed under Article 1 (2) of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111).
42. It was noted that while the ILO, advocates against unjust age discrimination, it acknowledges that setting a mandatory retirement age does not inherently constitute discrimination, provided it is justified by legitimate objectives and established through national laws or policies.
43. The 3rd Respondent further submitted that the Courts have held that the retirement age must accord with the national ethos and policies in place that answer to various parameters including micro and macro-economic dynamics, sectoral needs, considerations for individuals with special and rare skills and knowledge, pension scheme administration among others.
44. Dependence was placed in Inter Public Universities Councils Consultative Forum of the Federation of Kenya Employers v Kenya Union of Domestic, Hotels, Education Institutions and Hospital Workers (KUDHEIHA) & 2 others; Ministry of Education & 3 others (Interested Parties) [2021] KEELRC 2298 (KLR) where it was held that:
“The SRC guidelines which this court is enjoined to consider while dealing with matters that fall under the purview of SRC, provide that among the parameters to be considered in negotiations are Government Polices and Guidelines. The SRC guidelines provide –
8. Government Policies and Guidelines: Collective Bargaining Negotiations should adhere to existing policies and guidelines such as the Minimum Wage Guidelines/ Public Service Commission Human Resource Policies and Procedures Manual State Corporation guidelines and various SRC advisories.
Parties can therefore not negotiate outside public policy and guidelines.
For these reasons the proposals for amendment of retirement age are expunged from the CBAs. The current practice as set out in the pension schemes for universities/ the policies and guidelines in place and the provisions of any law that governs retirement age in the public sector shall apply.”
45. The 3rd Respondent moreover contended that the Petitioner’s allegations on discrimination concerning the mandatory retirement age had not been substantiated thus this burden had not been discharged in line with Section 109 of the Evidence Act.
46. The 3rd Respondent noted that the 2nd Respondent is primarily responsible for overseeing human resource development within the public sector while the 3rd Respondent operates within a different legal framework governed by the Employment Act. In essence, it was noted that the private sector employers have the autonomy to establish their own employment terms through their agreements with their employees. To that end, Counsel submitted that the Petition lacks merit.
Analysis and Determination
47. It is my considered take that the issues that arise for determination in this matter are as follows:
i. Whether this Court has jurisdiction to entertain this matter.
ii. Whether Sections 79(1) and 80 of the PSC Act and Regulation 70 of the PSC Regulations are unlawful and unconstitutional in view of Articles 27(4), 28 and 41(1) of the Constitution.
iii. Whether the Petitioner is entitled to the relief sought.
1st issue- Whether this Court has jurisdiction to entertain this matter
48. The 1st Respondent contended that this Court lacks jurisdiction to hear and determine this matter citing Article 162 (2) of the Constitution as read with Section 12 of the Employment and Labour Relations Court Act which grants the Employment and Labour Relations. The 1st Respondent argued that a dispute on mandatory retirement age falls within the jurisdictional competence of the Employment and Labour Relations Court and given the reasoning in Sollo Nzuki vs. Salaries and Remuneration Commission & 2 others (2019) eKLR .
49. The Supreme Court In the Matter of the Interim Independent Electoral Commission [2011] KESC 1(KLR) guided as follows:
“Assumption of jurisdiction by Courts in Kenya is a subject regulated by the Constitution, by statute law, and by principles laid out in judicial precedent. The classic decision in this regard is the Court of Appeal decision in Owners of Motor Vessel ‘Lillian S’ v. Caltex Oil (Kenya) Limited [1989] KLR 1, which bears the following passage (Nyarangi, JA at p.14):“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the Court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a Court has no power to make one more step.”[30] The Lillian ‘S’ case establishes that jurisdiction flows from the law, and the recipient-Court is to apply the same, with any limitations embodied therein. Such a Court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavours to discern or interpret the intentions of Parliament, where the wording of legislation is clear and there is no ambiguity. In the case of the Supreme Court, Court of Appeal and High Court, their respective jurisdictions are donated by the Constitution.”
50. In the same way the Court of Appeal speaking to this issue in Kakuta Maimai Hamisi v Peris Pesi Tobiko & 2 others [2013] KEHC 5855 (KLR) opined as follows:
“So central and determinative is the question of jurisdiction that it is at once fundamental and over-arching as far as any judicial proceeding is concerned. It is a threshold question and best taken at inception. It is definitive and determinative and prompt pronouncement on it, once it appears to be in issue, is a desideratum imposed on courts out of a decent respect for economy and efficiency and a necessary eschewing of a polite but ultimately futile undertaking of proceedings that will end in barren cul de sac. Courts, like nature, must not act and must not sit in vain.
The proper place of jurisdiction and the necessity to deal with it as the first order of business before an enquiry into merits of a cause was best captured in the case of The Owners Of The Motor Vessel Lillian ‘S’ Vs. Caltex Kenya Ltd [1989] KLR 1.”
51. The jurisdiction of the special courts is provided for under Article 162(2)(b) of the Constitution which states as follows:
1) The superior courts are the Supreme Court, the Court of Appeal, the High Court and the courts mentioned in clause (2).
2) Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to—
a) employment and labour relations; and
b) the environment and the use and occupation of, and title to, land.
3) Parliament shall determine the jurisdiction and functions of the courts contemplated in clause (2).
52. To give effect to Article 162 (3); Parliament enacted the Employment and Labour Relations Act in which section 12 defines the jurisdiction of the Court as follows:
1) The Court shall have exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with Article 162(2) of the Constitution and the provisions of this Act or any other written law which extends jurisdiction to the Court relating to employment and labour relations including—
a. disputes relating to or arising out of employment between an employer and an employee;
b. disputes between an employer and a trade union;
c. disputes between an employers’ organisation and a trade union’s organisation;
d. disputes between trade unions;
e. disputes between employer organisations;
f. disputes between an employers’ organisation and a trade union;
g. disputes between a trade union and a member thereof;
h. disputes between an employer’s organisation or a federation and a member thereof;
i. disputes concerning the registration and election of trade union officials; and
j. disputes relating to the registration and enforcement of collective agreements.
53. The Court in Sollo Nzuki (supra) rendered itself thus:
“Similarly, pursuant to Article 23(3) of the Constitution as read with section 12(3) of the Employment and Labour Relations Court Act, it is my view that the Employment and Labour Relations Court can grant reliefs in a constitutional petition. However, the jurisdiction to do so is confined to matters falling within Article 41 of the Constitution as read with section 12 of the Employment and Labour Relations Court Act. The Court cannot therefore purport entertain petitions outside the aforesaid matters as its jurisdiction is limited only in so far as employment matters and matters related thereto are concerned. In my view the matters which fall within the ambit of Article 162(2) of the Constitution must be matters within the exclusive jurisdiction of the said specialized Courts. However, as stated above, the Employment and Labour Relations Court may not embark on a generalized handling of petitions but is entitled to and is jurisdictionally empowered to address such matters if they arise directly and in relation to the matters within the court’s jurisd
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