Introduction
1. The petition dated 8 th May 2023 is supported by the petitioners’ affidavit in support.
2. The petition challenges the constitutionality of Section 6 of the Presidential Retirements Benefits Act which prohibits a retired president from holding office in a political party or engage in political activities.
3. On this premise, the petitioners seek the following relief: -
a) A declaration be and is hereby issued that Section 6 of the Presidential Retirement Benefits Act is inconsistent with the constitution as per Article 2(4) and hence is null and void ab initio.
b) Spent
c) An order be and is hereby issued compelling the 2 nd respondent to repeal and/or amend the said section to ensure conformity with the Constitution of Kenya.
d) The Honourable Court do make any such other or further orders as it may deem just and expedient in the circumstances to remedy the violation aforesaid.
e) Costs of this petition to be granted to the petitioners.
4. In opposition to the petition, the 1 st respondent and 1 st Interested Party filed Grounds of Opposition dated 9 th June 2023 and 31 st May 2023 respectively.
The Petitioners’ Case
5. The petitioners contend that Section 6 of the Presidential Retirements Benefits Act providing that a retired president should not hold office in any political party or engage in political matters should be declared unconstitutional, null and void as it infringes Articles 2, 38 and 151 of the Constitution on supremacy and political rights. Further the said provision accords an unfair advantage to some people and hence breaches the requirement of fairness, equality and proportionality.
The 1 st Respondent’s Case
6. The 1 st respondent states that Section 6 of the Presidential Retirement Benefits Act enjoys the presumption of legality and constitutionality and it is upon the party alleging unconstitutionality to demonstrate the alleged illegality at a full and fair hearing. The impugned law does not provide an absolute bar to the exercise of political rights by a retired president but only to the extent of holding office in a political party. Furthermore, political rights are subject to the limitations contemplated under Article 24 of the Constitution .
7. The 1 st respondent argues that the impugned law is rationally astute, having been formulated on the principle that not every differentiation or discrimination in law is unlawful or unconstitutional. Furthermore Article 259 of the Constitution requires that the court in considering the constitutionality of any issue before it, interpret the Constitution in a manner that promotes its purposes, values and principles, advances the rule of law and contributes to good governance. In exercising its judicial authority, the court is obliged to protect and promote the purpose and principles of the Constitution. Additionally,
the 1 st respondent invites the court to take judicial notice of the social and historical context that necessitated various electoral and political reforms leading to the promulgation of the 2010 Constitution. Accordingly, the impugned law serves to promote the spirit and purpose of the Constitution in particular, the values and principles espoused under Article 10 of the Constitution .
The 1 st Interested Party’s Case
8. The 1 st interested party argues that Section 6 of the Presidential Retirement Benefits Act has been in existence for over two decades and it therefore begs the question why the petitioners have never questioned its constitutionality for all that time only to wake up now. The 1 st interested party further argues that once a person retires from the office of the presidency, he or she rises above factional politics and graduates into the stature of an “elder statesman” and an overall advisor of the entire nation, which position Section 6 of the impugned Act seeks to protect. Further, there is a presumption of constitutionality on any statute and the contrary cannot be proven in an interim application.
9. The petition was disposed of by way of written submissions.
Petitioners’ Submissions
10. The petitioners submitted that Section 6 of the Presidential Retirement Benefits Act is inconsistent with the constitution as the provision discriminates against retired presidents by imposing restrictions on their right of association as well as political participation that are not applicable to other citizens. By restricting the ability of retired presidents to hold office in political parties, the
provision unduly limits their freedom to associate freely. Further, the impugned law curtails the political rights of retired presidents thereby denying them the right to participate in the political process fully and upon exiting office, retired presidents do not cease from being citizens of Kenya and thereby limiting access to some rights reserved to citizens. Further Section 6 of the Presidential Retirement Benefits Act limits the period of retired presidents to hold office in a political party to a period of six months after leaving office. The petitioners argued that that restriction is discriminatory and violates the principle of equality before the law as it subjects the presidents to a different standard than other citizens, without a justifiable basis. The limit on political participation infringes upon the freedom of association guaranteed under Article 36 of the Constitution.
11. The petitioners cited the case of Re: The Matter of the Interim Independent Electoral Commission [2011] eKLR and submitted that the interpretation of constitutional provisions must align with the principles and values enshrined in the Constitution. Further in Trusted Society of Human Rights Alliance vs Attorney General & 2 Others [2012] eKLR the High Court stated that any law that purports to limit a constitutional right must meet the strict requirements set out in the Constitution particularly the tests of legality, necessity and proportionality. Additionally, in John Harun Mwau vs Independent Electoral and Boundaries Commission & Another [2013] eKLR the court addressed the issue of discrimination and the need for laws to apply uniformly to all persons, reinforcing the principle of equality before the law. Like dependence was placed in the case of Centre for Rights Education and Awareness (CERAW) & 7 Others vs Attorney General [2011] eKLR where the High Court held that any statutory provision that infringes on
constitutional rights is invalid to the extent of its inconsistency with the Constitution.
12. The petitioners argued that the constitutional principles of equality, freedom of association and political rights are not unique to Kenya. Comparative jurisprudence from other jurisdictions provide valuable insights into the said principles. In the United States, the case of Buckley vs Valeo 424 US 1 (1976) highlighted the importance of protecting political freedoms, including the right to association and participation in political activities. Further in South Africa in New National Party of South Africa vs Government of the Republic of South Africa & Others [1999] ZACC 5 the court underscored the significance of political rights and the necessity for laws to respect these fundamental freedoms.
The 1 st Respondent’s Submissions
13. The 1 st respondent cited Article 259 of the Constitution and the case of Centre for Rights Education and Awareness & 2 Others vs John Harun Mwau & 6 Others [2012] eKLR which lays out the guiding foundation for the interpretation of the Constitution. The court summarized the principles as follows:-
Under Article 259 of the Constitution, the court is enjoined 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 in a manner that contributes to good governance. In exercising its judicial authority, this court is obliged under Article 159(2)(e) of the Constitution to promote the purposes and principles of the constitution.
There is the general presumption that every Act of Parliament is constitutional and the burden of proof lies on every person who alleges otherwise. (The court should start by assuming that the Act in question is constitutional).
In determining whether a statute is constitutional or not, the court must determine the object and purpose of the impugned statute for it is important to discern the intention expressed in the Act itself. Further, in examining whether a particular statutory provision is unconstitutional, the court must have regard not only to its purpose but also to its effect.
The constitution should be given a purposive, liberal interpretation.
That the provisions of the constitution must be read as an integrated, whole, without any one particular provision destroying the other but each sustaining the other.
The spirit of the constitution must preside and permeate the process of judicial interpretation and judicial discretion.
14. Further reliance was placed in the case of Hamdard Dawakhana & Anor vs The Union of India (Uoi) & Others AIR1960 SC 554, 1960 Cri. LJ 671 (1960) IIMLJ 1 SC 1960, 2 SCR 671 where the superior court held:-
In examining the constitutionality of a statute it must be assumed that the legislature understands and appreciates the needs of the people and the laws it enacts are directed to problems which are made manifest by experience and the elected representatives in a legislature and it enacts laws which they consider to be reasonable for purposes for which they were enacted. Presumption is therefore in favour of the constitutionality.
That in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, the history of the times and may assume every state of facts which can be conceived as existing, at the time of legislation.
15. Similar reliance was placed on the case of Federation of Women Lawyers (FIDA) vs Attorney General & Another [2018] eKLR where the court held that all constitutional provisions bearing upon a particular subject are to be
brought into view and interpreted so as to effectuate the greater purpose of the instrument.
16. The 1 st respondent submitted that the right to equal protection and benefit of the law and the right to the enjoyment of political rights as provided for under Articles 27 and 38 are not absolute. Article 24 permits the limitation of fundamental rights and freedoms to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom. When reviewing the validity of a law whose constitutional validity has been challenged, the courts have laid down two main standards for consideration:-
i. The rationality test- the standard that applies to all legislation under the rule of law.
ii. The reasonableness or proportionality test which applies when legislation limits a fundamental right in the Bill of Rights. Article 24(1) of the Constitution provides that such a limitation is valid only if it is “reasonable and justifiable in an open and democratic society.”
17. The 1 st respondent argued that Article 27 of the Constitution does not prohibit discrimination but rather unfair discrimination. Further, superior courts have held that mere differentiation or inequality of treatment does not per se amount to discrimination. A person claiming unfair discrimination must first establish that because of a distinction drawn between them and others, they have been denied equal protection or benefit of the law. The claimant must also demonstrate that the denial is unreasonable or arbitrary and that it does not rest on any rational basis having regard to the object which is the legislature had in mind when enacting the statutory provision.
18. The 1 st respondent contended that what calls for determination is what constitutes discrimination and under what circumstances the court can interfere in allegations of discrimination. In Peter K. Waweru vs Republic [2006] eKLR discrimination was defined in the following terms:-
Discrimination means affording different treatment to different persons attributable wholly or mainly to their descriptions whereby persons of one such description are subjected to….restrictions to which persons of another description are not made subject or accorded privileges or advantages which are not accorded to persons of another such description…Discrimination also means unfair treatment or denial of normal privileges to persons because of their race, age, sex….a failure to treat all persons equally where no reasonable distinction can be found between those favoured and those not favoured.
19. Unlawful or unfair discrimination may be direct or subtle. Direct and indirect discrimination were distinguished in the case of Nyarangi & Others vs Attorney General [2008] KLR 688 when it was stated that:-
Direct discrimination involves treating someone less favourably because of their possession of an attribute such as race, sex, religion compared to someone without that attribute in the same circumstances. Indirect or subtle discrimination involves setting a condition or requirement which is a smaller proportion of those with the attribute are able to comply with, without reasonable justification. The US Case if Griggs vs Duke Power Company 1971 401 US 424 91 is a good example of indirect discrimination, where an aptitude test used in a job application was found to disqualify negros at a substantially higher rate than white applicants.
20. Further reliance was placed in the case of Kedar Nath vs State of W.B. (1953) SCR 835 (843) where the court held:-
Mere differentia or inequality of treatment does not per se amount to discrimination within the inhibition of the equal protection clause. To attract the operation of the clause it is necessary to show that the selection or differentiation is unreasonable or arbitrary; that it does not rest on any rational basis having regard to the object which the legislation has in view.
21. Further reliance was placed on the case of John Harun Mwau vs Independent Electoral and Boundaries Commission & Another [2013] eKLR where the court considered the provisions of Article 27 wherein it stated:-
It must be clear that a person alleging a violation of Article 27 of the Constitution must establish that because of the distinction made between the claimant and others the claimant has been denied equal protection or benefit of the law. It does not necessarily mean that different treatment or inequality will per se amount to discrimination and a violation of the constitution.
22. The 1 st respondent contended that the impugned law does not provide an absolute bar to the exercise of political rights by a retired president or limit a retired president’s right of association or subject him or her to unequal benefit of the law. Section 6(1) is clear that it only bars a retired president from holding office in any political party for more than six months after ceasing to hold office as president. That simply means that a retired president while exercising all his/her other political rights, he/she is estopped from holding office in a political party at the lapse of six months after his/her retirement.
23. Furthermore, Section 23 of the Political Parties Act establishes the Political Parties Fund whose purpose is established under Section 26 of the Act to inter alia defray administrative and staff expenses of the political party. Consequently, the 1 st respondent argued that if the president were to hold office in a political party he would then be eligible to receiving benefits twice i.e
benefits accruing to him/her as a retired president under Article 151 and benefits accruing to him as a holder of an office in a political party in contravention of Article 20(d). The 1 st respondent submitted that the petitioner has failed to prove the alleged discrimination under Article 27 as he merely cites the provisions alleged to have been violated. Thus, without a proper and sufficient demonstration of the alleged violations, the impugned provisions remain legitimate and constitutional.
The 2 nd Respondent’s Submissions
24. The 2 nd respondent identified four issues for determination as follows; whether the petition is premature and violates the doctrine of separation of powers; whether the petitioner exhausted alternative remedies under Article 119 of the Constitution ; whether the petitioner has rebutted the presumption of constitutionality of the Presidential Retirement Benefits Act and whether the petition meets the pleading threshold under the Anarita Karimi Njeru case standard.
25. On the first issue, the 2 nd respondent cited Articles 94 and 95 of the Constitution and submitted that the judiciary cannot usurp the legislative mandate in a bid to maintain the doctrine of separation of powers. To buttress that point reliance was placed in the case of Republic vs Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 Others (Amicus Curiae) [2024] KESC 34 (KLR) where the court opined that courts rightfully exercised their constitutional mandate to interpret the law and declare statutes unconstitutional where warranted; however, in doing so, they remain mindful of the doctrine of separation of powers, which assigns the enactment and repeal of legislation to Parliament by stating as follows:-
This is why, even in the Muruatetu case, this court was keen to still defer to the legislature as the proper body mandated to legislate. While the courts have the mandate to interpret the law and where necessary strike out a law for being unconstitutional, this mandate does not extend to legislation or repeal of statutory provisions. In that regard, we echo with approval the words of the High Court in the case of Trusted Society of Human Rights vs Attorney General & Others High Court Petition No. 229 of 2012 [2012] eKLR at paragraphs 63-64 where it held as follows:
Although the Kenyan Constitution contains no explicit clause on separation of powers, the Montesquieuian influence is palpable throughout the foundational document, the Constitution, regarding the necessity of separating the governmental functions. The Constitution consciously delegates the sovereign power under it to the three branches of government and expects that each will carry out those functions assigned to it without interference from the other two.
26. Further reliance was placed in the Supreme Court case of Cabinet Secretary for the National Treasury and Planning & 4 Others vs Okoiti & 52 Others; Bhatia (Amicus Curiae) [2024] KESC 63 (KLR) where the court stated that courts are required to exercise judicial restraint in policy matters, intervening only to the extent necessary to uphold constitutional compliance when they determined as follows:-
In South Africa, it is generally accepted that executive government policies are better challenged politically and not judicially. In National Treasury & 5 Others vs Opposition to Urban Tolling Alliance & 4 Others [2012] ZACC 18 the Constitutional Court stated as follows:
It is undisputed that in July 2007 the Cabinet approved the Gauteng Freeway Improvement Project and the concomitant basis for its funding, e-tolling, after extensive investigation and a report to it on the issue. It is national executive and treasury policy not to use fuel levy type funding for these kinds of projects. None of this was, or could be, attacked on review in this Court. The playing field for the contestation of executive government policy is the political process not the judicial one.
The Constitutional Court of South Africa has proceeded to demarcate the courts’ role in reviewing policy questions in International Trade Administration Commission vs SCAW South Africa (Pty) Limited 2012 (4) SA 618 (CC) at paragraph 95 thus…The primary responsibility of a court is not to make decisions reserved for or within the domain of other branches of government, but rather to ensure that the concerned branches of government exercise their authority within the bounds of the Constitution. This would especially be so where the decision in issue is policy laden as well as polycentric.
Our position therefore remains what we have consistently stated in the decisions we have made reference to, that as a rule of thumb, courts should restrain from intervening in policy matters…..
In our view therefore, nothing turns on whether a policy is manifested through a law or flows from a given policy, as a policy may be made pursuant to a statutory requirement. What remains evident is that the National Government and Parliament are bestowed with constitutional mandates and functions on one hand, and the courts with the mandate of interpreting or testing them against the constitution on the other hand. These are distinct but interdependent roles that have to be undertaken under the current design of the Constitution. Since all arms of government serve the same people, the policy makers through exercise of public participation should endeavour to make policies that are consistent with the Constitution and resonates with the people.
27. Further in Katiba Institute vs Attorney General & 9 Others [2023] KESC 47 (KLR) the Supreme Court stated that while courts have the constitutional duty to ensure that state organs act within the bounds of the Constitution, they must exercise this oversight without overstepping their role or usurping the functions of those organs in line with the doctrine of separation of powers, when they determined as follows:-
The only caveat to this constitutional proclamation is that, in reviewing the administrative actions of these organs, the court must not substitute itself into the organs whose actions or decisions are the subject of review or substitute the impugned decision with its own decision. That is what the
doctrine of separation of powers demands. See the persuasive decision in Kenya Youth Parliament & 2 Others vs AG & Another, Constitutional Petition No. 101 of 2011 [2012] eKLR, our own in the case of Judicial Service Commission vs Speaker of the National Assembly & 8 Others [2014] eKLR.
28. The 2 nd respondent submitted that the petitioners’ case is premature and improperly before the court as they failed to exhaust the available legislative remedies under our constitutional and legal framework. Reliance was placed in the case of Kimani vs Mugan Chief Githurai 44 Location & 8 Others [2025] KEELC 3358 (KLR) where the court stated:-
The doctrine of exhaustion and its applicability has been elaborated upon in a number of decisions. In the case of Communications Commission of Kenya & 5 Others vs Royal Media Services Limited & 5 Others [2014] eKLR, the Supreme Court stated as hereunder:
Similarly the US Supreme Court has held that it would not decide a constitutional question which was properly before it, if there was also some other basis upon which the case could have been disposed of.
On appeal, the Court of Appeal dismissed the appeal stating that: “The appellant might want to argue that he has a constitutional right of access to justice, and we agree that he does, but the High Court and this court have pronounced themselves many times to the effect that a party must first exhaust the other processes availed by other statutory dispute resolution organs, which are by law established before moving to the High Court by way of constitutional petitions…..
In the pursuit of such sound legal principles, it is our disposition that disputes disguised and pleaded with the erroneous intention of attracting the jurisdiction of superior courts is not a substitute for known legal procedures. Even where superior courts had jurisdiction to determine profound questions of law, first opportunity had to be given to relevant persons, bodies, tribunals or any other quasi judicial authorities and organs to deal with the dispute as provided for in the relevant parent statute.
Likewise, the necessity to exhaust existing statutory dispute resolution mechanisms before approaching the jurisdiction of the court was also highlighted in the case of Nicholus vs Attorney General & 7 Others; national Environmental Complaints Committee & 5 Others [2023] KESC 113 (KLR) 106. The restraint and effective remedy rule, which we find favour in, is what led the Supreme Court of India in United Bank of India vs Satyawati Tondon & 5 Others (2010) 8 SCC to state as follows:
Flowing from the above findings and in that context, it is our view that, where the reliefs under the alternative mechanism are not adequate or effective, then there is nothing that precludes the adoption of a nuanced approach, as we have stated. What must matter at the end is that a path is chosen that safeguards a litigant’s right to access justice while also recognizing the efficiency and specificity that established alternative dispute resolution mechanisms can offer. This is because, to achieve a harmonious and effective legal framework, it is imperative to strike a judicious balance between the emphasis on providing the initial opportunity for resolution to entities established by law and the assertion of a litigant’s right to access the court. However, such convergence requires a case by case assessment by considering issues such as the nature of the dispute and the adequacy of the alternative dispute mechanism.
Finally, it is also important to reference the decision in Geoffrey Muthinja & Another vs Samuel Muguna Henry & 1756 Others [2015] KECA 304 (KLR) where the Court of Appeal emphasized the need to comply with the doctrine of exhaustion. The court stated as hereunder:
It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts is invoked. Courts ought to be the fora of last resort and not the first port of call the moment a storm brews within churches, as is bound to happen. The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside of courts. This accords with Article 159 of the Constitution which commands courts to encourage alternative means of dispute resolution.
29. The 2 nd respondent argued that Article 119 of the Constitution provides citizens with a direct and effective avenue to petition parliament for legal reforms yet the petitioners have presented no evidence of having utilized the said mechanism. Further, the Presidential Retirement Benefits Act has undergone
amendments demonstrating the National Assembly’s engagement as need has arisen with the legislation. Further, the petition creates a judicial intrusion into the National Assembly’s core legislative mandate. Article 94 of the Constitution vests exclusive law making authority in Parliament including the discretion to determine legislative priorities and timelines while Article 95(3) of the Constitution specifically outlines that the National Assembly enacts legislation in accordance with Part 4. The 2 nd respondent thus urges the court to uphold the doctrine of separation of powers and exercise restraint in granting the reliefs sought.
30. The 2 nd respondent argued that the petition fails to meet the threshold of justiciability as the petitioner alleges constitutional violations but provides no evidence of actual harm suffered under the current framework. The absence of any tangible prejudice renders the claims unsuitable for judicial determination at the current stage. Reliance was placed in the case of Wanjiru Gikonyo & 2 Others vs National Assembly of Kenya & 4 Others [2016] KEHC 5536 (KLR) where the court held:-
By justiciability it is meant a matter “proper to be examined in courts of justice” or a question as may properly come before a tribunal for decision. See Black’s Law Dictionary 9 th Ed pp 943-944. In other words, courts should only decide matters that require to be decided. Thus in Ashwander vs Tennessee Valley Authority [1936] 297 US 288, the US Supreme Court stated that courts should only decide cases which invite a real earnest and vital controversy.
Effectively, the justiciability dogma prohibits the court from entertaining hypothetical or academic interest cases. The court is not expected to engage in abstract arguments. The court is prevented from determining an issue when it is too early or simply out of apprehension hence the principle of ripeness. An issue before the court must be ripe, through a factual matrix for determination.
In Coalition for Reform and Democracy (CORD) & 2 Others vs Republic of Kenya & Another HCCP 628 of 2014 [2015] eKLR, the court cited the case of Patrick Ouma Onyango & 12 Others vs AG & 2 Others Misc. Appl No. 677 of 2005 wherein the court had endorsed the doctrine of justiciability as stated by Lawrence H. Tribe in his treatise American Constitutional Law, 2 nd Ed. Page 92 as follows:
In order for a claim to be justiciable as an article III matter, it must present a real and substantial controversy which unequivocally calls for adjudication of the rights asserted. In part, the extent to which there is a real and substantial controversy is determined under the doctrine of standing by an examination of the sufficiency of the stake of the person making the claim, to ensure the litigant has suffered an actual injury which is fairly traceable to challenged action and likely to be redressed by the judicial relief requested…
Finally, related to the nature of the controversy is the political question doctrine, barring decision of certain disputes best suited to r
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1. The petition dated 8 th May 2023 is supported by the petitioners’ affidavit in support.
2. The petition challenges the constitutionality of Section 6 of the Presidential Retirements Benefits Act which prohibits a retired president from holding office in a political party or engage in political activities.
3. On this premise, the petitioners seek the following relief: -
a) A declaration be and is hereby issued that Section 6 of the Presidential Retirement Benefits Act is inconsistent with the constitution as per Article 2(4) and hence is null and void ab initio.
b) Spent
c) An order be and is hereby issued compelling the 2 nd respondent to repeal and/or amend the said section to ensure conformity with the Constitution of Kenya.
d) The Honourable Court do make any such other or further orders as it may deem just and expedient in the circumstances to remedy the violation aforesaid.
e) Costs of this petition to be granted to the petitioners.
4. In opposition to the petition, the 1 st respondent and 1 st Interested Party filed Grounds of Opposition dated 9 th June 2023 and 31 st May 2023 respectively.
The Petitioners’ Case
5. The petitioners contend that Section 6 of the Presidential Retirements Benefits Act providing that a retired president should not hold office in any political party or engage in political matters should be declared unconstitutional, null and void as it infringes Articles 2, 38 and 151 of the Constitution on supremacy and political rights. Further the said provision accords an unfair advantage to some people and hence breaches the requirement of fairness, equality and proportionality.
The 1 st Respondent’s Case
6. The 1 st respondent states that Section 6 of the Presidential Retirement Benefits Act enjoys the presumption of legality and constitutionality and it is upon the party alleging unconstitutionality to demonstrate the alleged illegality at a full and fair hearing. The impugned law does not provide an absolute bar to the exercise of political rights by a retired president but only to the extent of holding office in a political party. Furthermore, political rights are subject to the limitations contemplated under Article 24 of the Constitution .
7. The 1 st respondent argues that the impugned law is rationally astute, having been formulated on the principle that not every differentiation or discrimination in law is unlawful or unconstitutional. Furthermore Article 259 of the Constitution requires that the court in considering the constitutionality of any issue before it, interpret the Constitution in a manner that promotes its purposes, values and principles, advances the rule of law and contributes to good governance. In exercising its judicial authority, the court is obliged to protect and promote the purpose and principles of the Constitution. Additionally,
the 1 st respondent invites the court to take judicial notice of the social and historical context that necessitated various electoral and political reforms leading to the promulgation of the 2010 Constitution. Accordingly, the impugned law serves to promote the spirit and purpose of the Constitution in particular, the values and principles espoused under Article 10 of the Constitution .
The 1 st Interested Party’s Case
8. The 1 st interested party argues that Section 6 of the Presidential Retirement Benefits Act has been in existence for over two decades and it therefore begs the question why the petitioners have never questioned its constitutionality for all that time only to wake up now. The 1 st interested party further argues that once a person retires from the office of the presidency, he or she rises above factional politics and graduates into the stature of an “elder statesman” and an overall advisor of the entire nation, which position Section 6 of the impugned Act seeks to protect. Further, there is a presumption of constitutionality on any statute and the contrary cannot be proven in an interim application.
9. The petition was disposed of by way of written submissions.
Petitioners’ Submissions
10. The petitioners submitted that Section 6 of the Presidential Retirement Benefits Act is inconsistent with the constitution as the provision discriminates against retired presidents by imposing restrictions on their right of association as well as political participation that are not applicable to other citizens. By restricting the ability of retired presidents to hold office in political parties, the
provision unduly limits their freedom to associate freely. Further, the impugned law curtails the political rights of retired presidents thereby denying them the right to participate in the political process fully and upon exiting office, retired presidents do not cease from being citizens of Kenya and thereby limiting access to some rights reserved to citizens. Further Section 6 of the Presidential Retirement Benefits Act limits the period of retired presidents to hold office in a political party to a period of six months after leaving office. The petitioners argued that that restriction is discriminatory and violates the principle of equality before the law as it subjects the presidents to a different standard than other citizens, without a justifiable basis. The limit on political participation infringes upon the freedom of association guaranteed under Article 36 of the Constitution.
11. The petitioners cited the case of Re: The Matter of the Interim Independent Electoral Commission [2011] eKLR and submitted that the interpretation of constitutional provisions must align with the principles and values enshrined in the Constitution. Further in Trusted Society of Human Rights Alliance vs Attorney General & 2 Others [2012] eKLR the High Court stated that any law that purports to limit a constitutional right must meet the strict requirements set out in the Constitution particularly the tests of legality, necessity and proportionality. Additionally, in John Harun Mwau vs Independent Electoral and Boundaries Commission & Another [2013] eKLR the court addressed the issue of discrimination and the need for laws to apply uniformly to all persons, reinforcing the principle of equality before the law. Like dependence was placed in the case of Centre for Rights Education and Awareness (CERAW) & 7 Others vs Attorney General [2011] eKLR where the High Court held that any statutory provision that infringes on
constitutional rights is invalid to the extent of its inconsistency with the Constitution.
12. The petitioners argued that the constitutional principles of equality, freedom of association and political rights are not unique to Kenya. Comparative jurisprudence from other jurisdictions provide valuable insights into the said principles. In the United States, the case of Buckley vs Valeo 424 US 1 (1976) highlighted the importance of protecting political freedoms, including the right to association and participation in political activities. Further in South Africa in New National Party of South Africa vs Government of the Republic of South Africa & Others [1999] ZACC 5 the court underscored the significance of political rights and the necessity for laws to respect these fundamental freedoms.
The 1 st Respondent’s Submissions
13. The 1 st respondent cited Article 259 of the Constitution and the case of Centre for Rights Education and Awareness & 2 Others vs John Harun Mwau & 6 Others [2012] eKLR which lays out the guiding foundation for the interpretation of the Constitution. The court summarized the principles as follows:-
Under Article 259 of the Constitution, the court is enjoined 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 in a manner that contributes to good governance. In exercising its judicial authority, this court is obliged under Article 159(2)(e) of the Constitution to promote the purposes and principles of the constitution.
There is the general presumption that every Act of Parliament is constitutional and the burden of proof lies on every person who alleges otherwise. (The court should start by assuming that the Act in question is constitutional).
In determining whether a statute is constitutional or not, the court must determine the object and purpose of the impugned statute for it is important to discern the intention expressed in the Act itself. Further, in examining whether a particular statutory provision is unconstitutional, the court must have regard not only to its purpose but also to its effect.
The constitution should be given a purposive, liberal interpretation.
That the provisions of the constitution must be read as an integrated, whole, without any one particular provision destroying the other but each sustaining the other.
The spirit of the constitution must preside and permeate the process of judicial interpretation and judicial discretion.
14. Further reliance was placed in the case of Hamdard Dawakhana & Anor vs The Union of India (Uoi) & Others AIR1960 SC 554, 1960 Cri. LJ 671 (1960) IIMLJ 1 SC 1960, 2 SCR 671 where the superior court held:-
In examining the constitutionality of a statute it must be assumed that the legislature understands and appreciates the needs of the people and the laws it enacts are directed to problems which are made manifest by experience and the elected representatives in a legislature and it enacts laws which they consider to be reasonable for purposes for which they were enacted. Presumption is therefore in favour of the constitutionality.
That in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, the history of the times and may assume every state of facts which can be conceived as existing, at the time of legislation.
15. Similar reliance was placed on the case of Federation of Women Lawyers (FIDA) vs Attorney General & Another [2018] eKLR where the court held that all constitutional provisions bearing upon a particular subject are to be
brought into view and interpreted so as to effectuate the greater purpose of the instrument.
16. The 1 st respondent submitted that the right to equal protection and benefit of the law and the right to the enjoyment of political rights as provided for under Articles 27 and 38 are not absolute. Article 24 permits the limitation of fundamental rights and freedoms to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom. When reviewing the validity of a law whose constitutional validity has been challenged, the courts have laid down two main standards for consideration:-
i. The rationality test- the standard that applies to all legislation under the rule of law.
ii. The reasonableness or proportionality test which applies when legislation limits a fundamental right in the Bill of Rights. Article 24(1) of the Constitution provides that such a limitation is valid only if it is “reasonable and justifiable in an open and democratic society.”
17. The 1 st respondent argued that Article 27 of the Constitution does not prohibit discrimination but rather unfair discrimination. Further, superior courts have held that mere differentiation or inequality of treatment does not per se amount to discrimination. A person claiming unfair discrimination must first establish that because of a distinction drawn between them and others, they have been denied equal protection or benefit of the law. The claimant must also demonstrate that the denial is unreasonable or arbitrary and that it does not rest on any rational basis having regard to the object which is the legislature had in mind when enacting the statutory provision.
18. The 1 st respondent contended that what calls for determination is what constitutes discrimination and under what circumstances the court can interfere in allegations of discrimination. In Peter K. Waweru vs Republic [2006] eKLR discrimination was defined in the following terms:-
Discrimination means affording different treatment to different persons attributable wholly or mainly to their descriptions whereby persons of one such description are subjected to….restrictions to which persons of another description are not made subject or accorded privileges or advantages which are not accorded to persons of another such description…Discrimination also means unfair treatment or denial of normal privileges to persons because of their race, age, sex….a failure to treat all persons equally where no reasonable distinction can be found between those favoured and those not favoured.
19. Unlawful or unfair discrimination may be direct or subtle. Direct and indirect discrimination were distinguished in the case of Nyarangi & Others vs Attorney General [2008] KLR 688 when it was stated that:-
Direct discrimination involves treating someone less favourably because of their possession of an attribute such as race, sex, religion compared to someone without that attribute in the same circumstances. Indirect or subtle discrimination involves setting a condition or requirement which is a smaller proportion of those with the attribute are able to comply with, without reasonable justification. The US Case if Griggs vs Duke Power Company 1971 401 US 424 91 is a good example of indirect discrimination, where an aptitude test used in a job application was found to disqualify negros at a substantially higher rate than white applicants.
20. Further reliance was placed in the case of Kedar Nath vs State of W.B. (1953) SCR 835 (843) where the court held:-
Mere differentia or inequality of treatment does not per se amount to discrimination within the inhibition of the equal protection clause. To attract the operation of the clause it is necessary to show that the selection or differentiation is unreasonable or arbitrary; that it does not rest on any rational basis having regard to the object which the legislation has in view.
21. Further reliance was placed on the case of John Harun Mwau vs Independent Electoral and Boundaries Commission & Another [2013] eKLR where the court considered the provisions of Article 27 wherein it stated:-
It must be clear that a person alleging a violation of Article 27 of the Constitution must establish that because of the distinction made between the claimant and others the claimant has been denied equal protection or benefit of the law. It does not necessarily mean that different treatment or inequality will per se amount to discrimination and a violation of the constitution.
22. The 1 st respondent contended that the impugned law does not provide an absolute bar to the exercise of political rights by a retired president or limit a retired president’s right of association or subject him or her to unequal benefit of the law. Section 6(1) is clear that it only bars a retired president from holding office in any political party for more than six months after ceasing to hold office as president. That simply means that a retired president while exercising all his/her other political rights, he/she is estopped from holding office in a political party at the lapse of six months after his/her retirement.
23. Furthermore, Section 23 of the Political Parties Act establishes the Political Parties Fund whose purpose is established under Section 26 of the Act to inter alia defray administrative and staff expenses of the political party. Consequently, the 1 st respondent argued that if the president were to hold office in a political party he would then be eligible to receiving benefits twice i.e
benefits accruing to him/her as a retired president under Article 151 and benefits accruing to him as a holder of an office in a political party in contravention of Article 20(d). The 1 st respondent submitted that the petitioner has failed to prove the alleged discrimination under Article 27 as he merely cites the provisions alleged to have been violated. Thus, without a proper and sufficient demonstration of the alleged violations, the impugned provisions remain legitimate and constitutional.
The 2 nd Respondent’s Submissions
24. The 2 nd respondent identified four issues for determination as follows; whether the petition is premature and violates the doctrine of separation of powers; whether the petitioner exhausted alternative remedies under Article 119 of the Constitution ; whether the petitioner has rebutted the presumption of constitutionality of the Presidential Retirement Benefits Act and whether the petition meets the pleading threshold under the Anarita Karimi Njeru case standard.
25. On the first issue, the 2 nd respondent cited Articles 94 and 95 of the Constitution and submitted that the judiciary cannot usurp the legislative mandate in a bid to maintain the doctrine of separation of powers. To buttress that point reliance was placed in the case of Republic vs Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 Others (Amicus Curiae) [2024] KESC 34 (KLR) where the court opined that courts rightfully exercised their constitutional mandate to interpret the law and declare statutes unconstitutional where warranted; however, in doing so, they remain mindful of the doctrine of separation of powers, which assigns the enactment and repeal of legislation to Parliament by stating as follows:-
This is why, even in the Muruatetu case, this court was keen to still defer to the legislature as the proper body mandated to legislate. While the courts have the mandate to interpret the law and where necessary strike out a law for being unconstitutional, this mandate does not extend to legislation or repeal of statutory provisions. In that regard, we echo with approval the words of the High Court in the case of Trusted Society of Human Rights vs Attorney General & Others High Court Petition No. 229 of 2012 [2012] eKLR at paragraphs 63-64 where it held as follows:
Although the Kenyan Constitution contains no explicit clause on separation of powers, the Montesquieuian influence is palpable throughout the foundational document, the Constitution, regarding the necessity of separating the governmental functions. The Constitution consciously delegates the sovereign power under it to the three branches of government and expects that each will carry out those functions assigned to it without interference from the other two.
26. Further reliance was placed in the Supreme Court case of Cabinet Secretary for the National Treasury and Planning & 4 Others vs Okoiti & 52 Others; Bhatia (Amicus Curiae) [2024] KESC 63 (KLR) where the court stated that courts are required to exercise judicial restraint in policy matters, intervening only to the extent necessary to uphold constitutional compliance when they determined as follows:-
In South Africa, it is generally accepted that executive government policies are better challenged politically and not judicially. In National Treasury & 5 Others vs Opposition to Urban Tolling Alliance & 4 Others [2012] ZACC 18 the Constitutional Court stated as follows:
It is undisputed that in July 2007 the Cabinet approved the Gauteng Freeway Improvement Project and the concomitant basis for its funding, e-tolling, after extensive investigation and a report to it on the issue. It is national executive and treasury policy not to use fuel levy type funding for these kinds of projects. None of this was, or could be, attacked on review in this Court. The playing field for the contestation of executive government policy is the political process not the judicial one.
The Constitutional Court of South Africa has proceeded to demarcate the courts’ role in reviewing policy questions in International Trade Administration Commission vs SCAW South Africa (Pty) Limited 2012 (4) SA 618 (CC) at paragraph 95 thus…The primary responsibility of a court is not to make decisions reserved for or within the domain of other branches of government, but rather to ensure that the concerned branches of government exercise their authority within the bounds of the Constitution. This would especially be so where the decision in issue is policy laden as well as polycentric.
Our position therefore remains what we have consistently stated in the decisions we have made reference to, that as a rule of thumb, courts should restrain from intervening in policy matters…..
In our view therefore, nothing turns on whether a policy is manifested through a law or flows from a given policy, as a policy may be made pursuant to a statutory requirement. What remains evident is that the National Government and Parliament are bestowed with constitutional mandates and functions on one hand, and the courts with the mandate of interpreting or testing them against the constitution on the other hand. These are distinct but interdependent roles that have to be undertaken under the current design of the Constitution. Since all arms of government serve the same people, the policy makers through exercise of public participation should endeavour to make policies that are consistent with the Constitution and resonates with the people.
27. Further in Katiba Institute vs Attorney General & 9 Others [2023] KESC 47 (KLR) the Supreme Court stated that while courts have the constitutional duty to ensure that state organs act within the bounds of the Constitution, they must exercise this oversight without overstepping their role or usurping the functions of those organs in line with the doctrine of separation of powers, when they determined as follows:-
The only caveat to this constitutional proclamation is that, in reviewing the administrative actions of these organs, the court must not substitute itself into the organs whose actions or decisions are the subject of review or substitute the impugned decision with its own decision. That is what the
doctrine of separation of powers demands. See the persuasive decision in Kenya Youth Parliament & 2 Others vs AG & Another, Constitutional Petition No. 101 of 2011 [2012] eKLR, our own in the case of Judicial Service Commission vs Speaker of the National Assembly & 8 Others [2014] eKLR.
28. The 2 nd respondent submitted that the petitioners’ case is premature and improperly before the court as they failed to exhaust the available legislative remedies under our constitutional and legal framework. Reliance was placed in the case of Kimani vs Mugan Chief Githurai 44 Location & 8 Others [2025] KEELC 3358 (KLR) where the court stated:-
The doctrine of exhaustion and its applicability has been elaborated upon in a number of decisions. In the case of Communications Commission of Kenya & 5 Others vs Royal Media Services Limited & 5 Others [2014] eKLR, the Supreme Court stated as hereunder:
Similarly the US Supreme Court has held that it would not decide a constitutional question which was properly before it, if there was also some other basis upon which the case could have been disposed of.
On appeal, the Court of Appeal dismissed the appeal stating that: “The appellant might want to argue that he has a constitutional right of access to justice, and we agree that he does, but the High Court and this court have pronounced themselves many times to the effect that a party must first exhaust the other processes availed by other statutory dispute resolution organs, which are by law established before moving to the High Court by way of constitutional petitions…..
In the pursuit of such sound legal principles, it is our disposition that disputes disguised and pleaded with the erroneous intention of attracting the jurisdiction of superior courts is not a substitute for known legal procedures. Even where superior courts had jurisdiction to determine profound questions of law, first opportunity had to be given to relevant persons, bodies, tribunals or any other quasi judicial authorities and organs to deal with the dispute as provided for in the relevant parent statute.
Likewise, the necessity to exhaust existing statutory dispute resolution mechanisms before approaching the jurisdiction of the court was also highlighted in the case of Nicholus vs Attorney General & 7 Others; national Environmental Complaints Committee & 5 Others [2023] KESC 113 (KLR) 106. The restraint and effective remedy rule, which we find favour in, is what led the Supreme Court of India in United Bank of India vs Satyawati Tondon & 5 Others (2010) 8 SCC to state as follows:
Flowing from the above findings and in that context, it is our view that, where the reliefs under the alternative mechanism are not adequate or effective, then there is nothing that precludes the adoption of a nuanced approach, as we have stated. What must matter at the end is that a path is chosen that safeguards a litigant’s right to access justice while also recognizing the efficiency and specificity that established alternative dispute resolution mechanisms can offer. This is because, to achieve a harmonious and effective legal framework, it is imperative to strike a judicious balance between the emphasis on providing the initial opportunity for resolution to entities established by law and the assertion of a litigant’s right to access the court. However, such convergence requires a case by case assessment by considering issues such as the nature of the dispute and the adequacy of the alternative dispute mechanism.
Finally, it is also important to reference the decision in Geoffrey Muthinja & Another vs Samuel Muguna Henry & 1756 Others [2015] KECA 304 (KLR) where the Court of Appeal emphasized the need to comply with the doctrine of exhaustion. The court stated as hereunder:
It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts is invoked. Courts ought to be the fora of last resort and not the first port of call the moment a storm brews within churches, as is bound to happen. The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside of courts. This accords with Article 159 of the Constitution which commands courts to encourage alternative means of dispute resolution.
29. The 2 nd respondent argued that Article 119 of the Constitution provides citizens with a direct and effective avenue to petition parliament for legal reforms yet the petitioners have presented no evidence of having utilized the said mechanism. Further, the Presidential Retirement Benefits Act has undergone
amendments demonstrating the National Assembly’s engagement as need has arisen with the legislation. Further, the petition creates a judicial intrusion into the National Assembly’s core legislative mandate. Article 94 of the Constitution vests exclusive law making authority in Parliament including the discretion to determine legislative priorities and timelines while Article 95(3) of the Constitution specifically outlines that the National Assembly enacts legislation in accordance with Part 4. The 2 nd respondent thus urges the court to uphold the doctrine of separation of powers and exercise restraint in granting the reliefs sought.
30. The 2 nd respondent argued that the petition fails to meet the threshold of justiciability as the petitioner alleges constitutional violations but provides no evidence of actual harm suffered under the current framework. The absence of any tangible prejudice renders the claims unsuitable for judicial determination at the current stage. Reliance was placed in the case of Wanjiru Gikonyo & 2 Others vs National Assembly of Kenya & 4 Others [2016] KEHC 5536 (KLR) where the court held:-
By justiciability it is meant a matter “proper to be examined in courts of justice” or a question as may properly come before a tribunal for decision. See Black’s Law Dictionary 9 th Ed pp 943-944. In other words, courts should only decide matters that require to be decided. Thus in Ashwander vs Tennessee Valley Authority [1936] 297 US 288, the US Supreme Court stated that courts should only decide cases which invite a real earnest and vital controversy.
Effectively, the justiciability dogma prohibits the court from entertaining hypothetical or academic interest cases. The court is not expected to engage in abstract arguments. The court is prevented from determining an issue when it is too early or simply out of apprehension hence the principle of ripeness. An issue before the court must be ripe, through a factual matrix for determination.
In Coalition for Reform and Democracy (CORD) & 2 Others vs Republic of Kenya & Another HCCP 628 of 2014 [2015] eKLR, the court cited the case of Patrick Ouma Onyango & 12 Others vs AG & 2 Others Misc. Appl No. 677 of 2005 wherein the court had endorsed the doctrine of justiciability as stated by Lawrence H. Tribe in his treatise American Constitutional Law, 2 nd Ed. Page 92 as follows:
In order for a claim to be justiciable as an article III matter, it must present a real and substantial controversy which unequivocally calls for adjudication of the rights asserted. In part, the extent to which there is a real and substantial controversy is determined under the doctrine of standing by an examination of the sufficiency of the stake of the person making the claim, to ensure the litigant has suffered an actual injury which is fairly traceable to challenged action and likely to be redressed by the judicial relief requested…
Finally, related to the nature of the controversy is the political question doctrine, barring decision of certain disputes best suited to r
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