' REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT LODWAR
CONSTITUONAL AND HUMAN RIGTHTS DIVISION
PETITION NO. E002 OF 2024
IN THE MATTER OF ARTICLES 1,2,3,10,27,41,73,75 & 259 OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF MANDATORY RETIREMENT AGE FOR PUBLIC OFFICERS
AND
IN THE MATTER OF HUMAN RESOURCE POLICIES AND PROCEDURES MANUAL FOR PUBLIC SERVICE 2016
BETWEEN
FREDRICK MULAA………….……..……………..……...….………………..PETITIONER
AND
PUBLIC SERVICE COMMISSION…………………….......….……..1 ST RESPONDENT
CHIEF OF STAFF AND HEAD OF PUBLIC SERVICE………………2 ND RESPONDENT
THE ATTORNEY GENERAL…………………………………………..3 RD RESPONDENT
JUDGMENT
The Petitioner’s Case
In the petition dated 6 th November, 2024, the petitioner is described as a public-spirited individual with a keen interest in the rule of law and human rights and further asserts that the petition is instituted in the public interest.
His case is that it came to his knowledge that on 5 th August, 2024, the 2 nd respondent issued a directive on the mandatory retirement age of public service officers to be 60 years and that the effect of the said directive is to have all public officers including CEOs of parastatals serving on fixed term contracts to have their contracts terminated on the basis of age.
The petitioner adds that on or about 27.02.2018, the 2 nd respondent issued a circular Ref No. OP/CAB.9/1A with regard to the terms of service for State Corporations’ Chief Executive Officers which circular stated that their terms of service is contractual and renewable based on performance and that they are not subject to the general public service policy on mandatory retirement at 60 or 65 years or limit as to the number of years served. He pleaded that that earlier circular was upheld to present the position of the law by the High Court in the case of Okiya Omtatah v Joseph Kinyua & another [2018] eKLR.
He further contends that the directive by the 2 nd respondent issued on 05.08.2024 contradicts the earlier circular and that since the judgment of this court remains unchallenged, the circular and its directive amounts to a violation of articles 2,3,19,20,21,22 and 23 Constitution of Kenya.
The petitioner thus seeks that the court grants to the reliefs in the nature of;
A declaration that the directive of the 2 nd respondent contained in the letter dated 5 th August, 2024 ref ON CAB.2/1 is ultra vires, illegal, null and void having been issued in contravention of the judgment contained in Okiya Omtatah v Joseph Kinyua & another [2018] eKLR.
An order of certiorari be issued quashing the directive by the 2 nd respondent contained in the letter dated 5 th August, 2024 ref ON CAB.2/1 to the extent that it relates to terms of service of parastatal’s CEO’s serving on fixed term contracts beyond the age of 60 years.
Costs of this petition.
Any other order that this Honourable Court shall deem fit to grant.
The petition is supported by the affidavit of Fredrick Mulaa sworn on 06.11.2024 in which he reiterates the averments in the petition then exhibits the documents relied upon being; the two circulars dated 27.02.2018 and 05.08.2024 as well as correspondence between the Chief of Staff and Head of Public service and attorney General together with a press release by the Government Spokesman of the subject. The judgment in Nairobi HC CONST PET. NO 51 OF 2018 was also exhibited as such documents.
Respondent’s Response to the Petition
The 1 st respondent, Public Service Commission, sued for its constitutional mandate of establishing and abolishing offices in the public service to ensure quality, effective and efficient services and the duty to observe the constitutional principles and values in articles 10 and 232 of the constitution and the statutes so aligned. The 1 st respondent has, in resisting the petition, filed grounds of opposition in which it is contended;
That section 80 of the Public Service Commission Act, CAP 185 makes provision for the mandatory retirement age of public officers as prescribed by regulations;
That section 92 of the Public Service Commission Act, CAP 185 gives power to the 1 st respondent to make regulations and guidelines for retirement;
That the regulation 70(1) of the Public Service Commission Regulations, 2020 provides for the retirement age for public officers to be i) 60 years; ii) 65 years for persons with disability and iii) such age as may be determined by the commission for lecturers and research scientists serving in public universities, research institutions or equivalent institutions, in consultation with the said institutions.
It thus contends that a court order stopping implementation of the 2 nd respondent’s directive cannot stop the 1 st respondent from complying with the law on the mandatory retirement age.
On their part, the 2 nd and 3 rd respondent filed a joint opposition in the nature of a Notice of preliminary objection to petition as well as the Ground of Opposition dated 17.2.2025. The gist of the notice is that the subject of this petition is the preserve of the Employment and Labour Relations Court and therefore the high court lacks the jurisdiction to hear and determine the matter. That petition was however struck out after the counsel failed to file submissions on it as directed by the court. As I draft this decision, the 2 nd and 3 rd respondents only have the Grounds of opposition dated 17.2.2025 in resisting the petition.
Even though the petition was filed with an application for conservatory orders, the parties agreed with the court that for the expeditious disposal of the petition the said application for conservatory orders be collapsed into the petition.
The parties thereafter filed written submissions which the court has had the benefit of reading and shall take same into account without necessarily rehashing the same in details in this decision.
The Submissions
In the submissions filed, the petitioner identifies the only one issue for determination by the court. That issue is expressed to be; whether the directive issued by the 2 nd respondent, dated 05.08.2024, relating to the terms of service of parastatals’ CEOs with fixed term contracts beyond the age of 60 years can countermand a judgment of the Court issued pursuant to an earlier circular?
The petitioner then reiterates the averments in the petition and asserts that since the decision of the court in Okiya Omtatah v Joseph Kinyua & another [2018] eKLR remains unchallenged, it is the prevailing position of the law that the contracts of chief executive officers serving in state corporations would be renewable based on performance and not on the general retirement age.
The decision in Okiya Omtata Okoiti vs the Head of Public Service & 3 Others (Petition No. 114 of 2016) was cited for the proposition that it is the discretion of the government in power, subject to the constitution and statute, to control its human resource function in order to what the political party in power could have pledged in its campaigns. That discretion, the court said, include the discretion to hire or retain where necessary some of the most experienced persons in the relevant field regardless of whether they are past retirement age.
The petitioner further cited to court the decision in the case of Wildlife Lodges Ltd v County Council of Narok & another [2005] 2 EA 344 (HCK) for the holding that It was the plain and unqualified obligation of every person against or in respect of whom an order was made by a court of competent jurisdiction to obey it until that order was discharged.
The petitioner also submits that a legitimate expectation arose when CEO’s who were past the retirement age had their contracts renewed based on the 2018 circular and the judgment in the case of Okiyah Omtata.
On what amounts to legitimate expectation, the petitioner cites the decision of the Supreme Court of Kenya in Kenya Revenue Authority v Export Trading Company Limited (Petition 20 of 2020) [2022] KESC 31 (KLR) (Civ) (17 June 2022 where the court held as follows;
“…in the CCK Case where it was held that legitimate expectation would arise when a body, by representation or by past practice, has aroused an expectation that is within its power to fulfill. For an expectation to be legitimate therefore, it must be founded upon a promise or practice by a public authority that is expected to fulfill the expectation. We then went on to find the emerging principles on legitimate expectation to be that; “a. there must be an express, clear and unambiguous promise given by a public authority; b. the expectation itself must be reasonable; c. the representation must be one which it was competent and lawful for the decision-maker to make; and (d) there cannot be a legitimate expectation against clear provisions of the law or the Constitution.”
The petitioner thus urges the court to find that the applicant has proved that the chief Executive officers who had been appointed during the tenure and currency of the 2018 secular and the ensuing judgment reasonably entertained the legitimate expectation that their tenure would be governed by the contracts signed with such state corporations and not by the general rules of the main civil service and that such would contradict an unchallenged court decision on the subject.
For the 1 st respondent, the submissions filed identify three issues for determination by the court to be; whether the first issue raised by the petitioner offends the doctrine of res judicata; whether the impugned circular contravenes the terms and conditions of service of CEOs serving in parastatals and; and, whether the petitioner is entitled to the reliefs sought.
On whether the first issue raised by the petitioner offends the doctrine of res judicata, the 1 st respondent submits that the issue raised by the petitioner similarly concerns the retirement age of an employee which has already been heard and determined by a court of competent jurisdiction and cannot therefore be litigated afresh in another court.
The case of Mwangi v Attorney General & another; Public Service Commission & 2 others (Interested Parties) (Employment and Labour Relations Petition E110 of 2024) [2024] KEELRC 13338 (KLR) (5 December 2024) (Judgment) is cited for the holding that where the president had reiterated the position of various statutes on retirement age, he could not be faulted for breaching the constitution by usurping the role and mandates of other institutions or organs.
The 1 st respondent then contends that the circular being challenged by the petitioner emanated from the presidential directive dated 8 th July, 2024 from which the cause of action in the cited suit and was thus res judicata. It was thus stressed that the 2 nd respondent in issuing the circular dated 5 th August, 2024 was only reiterating what is provided in law that is, Regulation 70(1) of the Public Service Commission Regulations which provide for the mandatory retirement age in the public service.
On whether the impugned circular contravenes the terms and conditions of service of CEOs serving in parastatals, the 1 st respondent asserts that while the circular reaffirmed the government policy on retirement age for public officers, it did so in recognition of the exceptions outlined in various laws as already provided in regulation 70(1) and it did not in any way violate the Constitution or the court’s judgment in Okiya Omtatah v Joseph Kinyua & another (2018) eKLR. The decisions in IEBC vs Maina Kiai & 5 Others (2017)eKLR, John Kennedy Agengo vs Moses L ochanda (2018)KEHC 4983 (KLR) and Amalgamated Union of kenya Metal Workers vs Pelican Signs Ltd (2022)KEELRC 1693 (KLR) were cited for the law that the doctrine of res judicata serves the purpose of avoiding duplicity of suits and bring finality to litigation
It is then pointed out that the subject circular was a reiteration of the presidential directive dated 4.7.2024 which had attracted the litigation in the Carolyne Wambui Mwangi’s case which was dismissed.
On whether the circular contravened the terms and conditions of service of CEOs serving in parastatals, the 1 st respondent relied on Regulation 70(1), Public Service Regulations, 2020, which sets the retirement age, subject to the constitution, section 80 of the Public Service Act, any other written law and specific government policy. The regulations are submitted to take cognizance and deference to the fixed contracts of those serving in parastatals hence aligns with and does not contradict the judgment in the Okiya Omtata’s case.
The law of contract was invited for the position that a contract cannot be enforced by or against a third party. For that proposition, the decisions in Savings and Loans K ltd vs Kanyenje Karangaita Gikombe & Another (2015 KECA 784 (KLR) and Agricultural Finance Corporation vs Lengetia Ltd were cited with a pointer that the affected CEOs had not challenged the circular.
In regard to the third issue, the 1 st respondent reiterates the submissions on the two issues above, add that the petition as drafted fails the precision test as enunciated in the case of Anarita Kirimi Njeru vs Republic (1979) eKLR and submits that the petitioner is not entitled to any of the remedies sought and thus the petition is a candidate for dismissal.
For the 2 nd and 3 rd Respondents Submissions were mounted on two issues; whether the decision in Okiya Omtata’s case barred the 2 nd respondent from issuing directives on retirement and whether the impugned circular was unconstitutional.
On the first issue, the respondents submit that the judge issued an order of declaration of unconstitutionality of the circular only to the extent that it commanded that civil servants be sent on compulsory leave without being heard but found no issue with the retirement age. The two respondents while agreeing with the petitioner’s position that the retirement of chief executive officers in parastatals cannot be capped at 60 submit that the decision absolved the Head of Public Service of usurping the role of the Public Service Commission. To the respondents, the court upheld the right of the Head of Public service to issue the circular.
The two respondents further submit that the directive does not seek to cancel any contract but it is communicating to the appointing authorities that they should not renew contracts of persons who have exceeded the age of 60 years.
Issues, Analysis and Determination.
Even though the petition may be seen and read to challenge the entire letter and spirit of the subject circular, a keener scrutiny reveals that the objection is largely targeting the aspect of extension of the contracts for those who may ask for such extension after attaining the statutory retirement age. The court reads the circular not to outlaw appointment of one who has attained retirement age as at the date the appointment is to be considered. That underscores the political purpose the corporations serve for the government of the day. The court views the parastatals to serve political purpose with the provisions of section 3 of the State corporations act in mind. The court also takes judicial notice on how the appointments and revocations of such appointments are done.
It is of note to the court that it takes no policy nor research, in the words of section 3 of the statute, for the president to create a state corporation. The boards which are the statutory appointing authorities are themselves apparently not hamstrung to restrict the appointment to persons yet to attain the retirement age.
Essentially, therefore, the petition questions how the circular sits with the decision of the High court in the okiya Omtata’s case. The substantive questions for determination is, therefore, whether the circular has the effect of overriding a decision of the court on the subject of the circular and if that sits well with the constitution. There are, however, the preliminary issues of whether; the matter is res judicate, if the dispute presents a constitutional question and, if the petitioner has the pedestal to being it.
Whether a petitioner has the locus standi in a matter of this nature has become a common question in the past with court consistently stating that the window created by article 22(1) and 258(20 entitles any person to bring a petition on behalf of the public as a show of public spiritedness. The Court of Appeal was very explicit on this point in the case of Mumo Matemu vs Trusted Society of Human Rights Alliace and Others (2013) eKLR where the court said; -
“… by dint of Articles 22 and 258 of the constitution, any person can institute proceedings under the bill of rights, on behalf of another person who cannot act in their own name, or as a member of, or in the interest of a group or class of persons, or in public interest”
In this petition I read the petitioner to contend that for the sake of the rule of law, a court decision on the subject of eligibility of Chief Executive Officers of parastatals should be respected and not overridden by circulars. That position the court finds to be an interest that transcends the personal interest of the petitioner and passes as an interest of the larger public that would seek to protect and further the aspirations of Kenyans that the country be led and governed on the value of the rule of law. The court thus finds that the petition raises a valid constitutional question, that the petitioner has the necessary standing to have mounted same.
On the substantive question of whether the circular infringes on the court decision, the answer must emerge from what the court, Ongaya, J, said in the judgment relied upon.
In the judgment the court found as a fact that the provisions of Article 132(3) of the constitution, section 8 of the National Government Coordination Act and Section 7 of the State Corporations Act, empower the president with the duty to direct and coordinate the functions of ministries, government departments and state corporations and that as established, the constitutional mandate of the office head of Public has the mandate to issue the circular as was done.
While the government and its agencies and departments have the duty to respect and enforce decision of the court, that duty doesn’t lessen the mandate of such agencies and departments to perform their duties as vested in law.
Circulars are permissible tools for delivery by the executive on its agenda to meet the promises made to the electorate. Such circular if aligned to the law invite no interference from the court.
Now, while the circular of 2018 and the ensuing judgment did create and bestowed on those contracted as chief executive officers of state corporations, the duty of the head of public service to help the president in his coordination and direction of state corporations was not annulled by the judgment.
What the circular dated did not purport to do and which it cannot be read to have done, is to authorize the termination of contracts legally negotiated and concluded, by appointment or extension, of such holders of offices by such chief executive officers. As is conceded and pointed out by the 2 nd and 3 rd Respondents, the court finds that the circular dated 5.8.2025 does not purport to usurp the powers of the appointing authority to review the contracts, upon evaluation based on performance. For avoidance of doubt, those chief executive officers who were in officer as at the date the circular of 5.8.2025 was issued had their contracts ringfenced by the contracts in force and never affected by the circular
In conclusion the court finds nothing ultra vires in the circular dated 5.8.2024 when viewed as against the court decision. Equally nothing is discerned to pass as unconstitutional.
The end result is that the petitioner is not entitled to the prayer for declaration as well as the mandamus sought.
The petition is dismissed but because the petition was clearly seeking enforcement of a value of the constitution, it was brought in public interest and the court orders that each party shall bear own costs.
Dated, signed and delivered at Lodwar, this 30 th day of July,2025.
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IN THE HIGH COURT OF KENYA AT LODWAR
CONSTITUONAL AND HUMAN RIGTHTS DIVISION
PETITION NO. E002 OF 2024
IN THE MATTER OF ARTICLES 1,2,3,10,27,41,73,75 & 259 OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF MANDATORY RETIREMENT AGE FOR PUBLIC OFFICERS
AND
IN THE MATTER OF HUMAN RESOURCE POLICIES AND PROCEDURES MANUAL FOR PUBLIC SERVICE 2016
BETWEEN
FREDRICK MULAA………….……..……………..……...….………………..PETITIONER
AND
PUBLIC SERVICE COMMISSION…………………….......….……..1 ST RESPONDENT
CHIEF OF STAFF AND HEAD OF PUBLIC SERVICE………………2 ND RESPONDENT
THE ATTORNEY GENERAL…………………………………………..3 RD RESPONDENT
JUDGMENT
The Petitioner’s Case
In the petition dated 6 th November, 2024, the petitioner is described as a public-spirited individual with a keen interest in the rule of law and human rights and further asserts that the petition is instituted in the public interest.
His case is that it came to his knowledge that on 5 th August, 2024, the 2 nd respondent issued a directive on the mandatory retirement age of public service officers to be 60 years and that the effect of the said directive is to have all public officers including CEOs of parastatals serving on fixed term contracts to have their contracts terminated on the basis of age.
The petitioner adds that on or about 27.02.2018, the 2 nd respondent issued a circular Ref No. OP/CAB.9/1A with regard to the terms of service for State Corporations’ Chief Executive Officers which circular stated that their terms of service is contractual and renewable based on performance and that they are not subject to the general public service policy on mandatory retirement at 60 or 65 years or limit as to the number of years served. He pleaded that that earlier circular was upheld to present the position of the law by the High Court in the case of Okiya Omtatah v Joseph Kinyua & another [2018] eKLR.
He further contends that the directive by the 2 nd respondent issued on 05.08.2024 contradicts the earlier circular and that since the judgment of this court remains unchallenged, the circular and its directive amounts to a violation of articles 2,3,19,20,21,22 and 23 Constitution of Kenya.
The petitioner thus seeks that the court grants to the reliefs in the nature of;
A declaration that the directive of the 2 nd respondent contained in the letter dated 5 th August, 2024 ref ON CAB.2/1 is ultra vires, illegal, null and void having been issued in contravention of the judgment contained in Okiya Omtatah v Joseph Kinyua & another [2018] eKLR.
An order of certiorari be issued quashing the directive by the 2 nd respondent contained in the letter dated 5 th August, 2024 ref ON CAB.2/1 to the extent that it relates to terms of service of parastatal’s CEO’s serving on fixed term contracts beyond the age of 60 years.
Costs of this petition.
Any other order that this Honourable Court shall deem fit to grant.
The petition is supported by the affidavit of Fredrick Mulaa sworn on 06.11.2024 in which he reiterates the averments in the petition then exhibits the documents relied upon being; the two circulars dated 27.02.2018 and 05.08.2024 as well as correspondence between the Chief of Staff and Head of Public service and attorney General together with a press release by the Government Spokesman of the subject. The judgment in Nairobi HC CONST PET. NO 51 OF 2018 was also exhibited as such documents.
Respondent’s Response to the Petition
The 1 st respondent, Public Service Commission, sued for its constitutional mandate of establishing and abolishing offices in the public service to ensure quality, effective and efficient services and the duty to observe the constitutional principles and values in articles 10 and 232 of the constitution and the statutes so aligned. The 1 st respondent has, in resisting the petition, filed grounds of opposition in which it is contended;
That section 80 of the Public Service Commission Act, CAP 185 makes provision for the mandatory retirement age of public officers as prescribed by regulations;
That section 92 of the Public Service Commission Act, CAP 185 gives power to the 1 st respondent to make regulations and guidelines for retirement;
That the regulation 70(1) of the Public Service Commission Regulations, 2020 provides for the retirement age for public officers to be i) 60 years; ii) 65 years for persons with disability and iii) such age as may be determined by the commission for lecturers and research scientists serving in public universities, research institutions or equivalent institutions, in consultation with the said institutions.
It thus contends that a court order stopping implementation of the 2 nd respondent’s directive cannot stop the 1 st respondent from complying with the law on the mandatory retirement age.
On their part, the 2 nd and 3 rd respondent filed a joint opposition in the nature of a Notice of preliminary objection to petition as well as the Ground of Opposition dated 17.2.2025. The gist of the notice is that the subject of this petition is the preserve of the Employment and Labour Relations Court and therefore the high court lacks the jurisdiction to hear and determine the matter. That petition was however struck out after the counsel failed to file submissions on it as directed by the court. As I draft this decision, the 2 nd and 3 rd respondents only have the Grounds of opposition dated 17.2.2025 in resisting the petition.
Even though the petition was filed with an application for conservatory orders, the parties agreed with the court that for the expeditious disposal of the petition the said application for conservatory orders be collapsed into the petition.
The parties thereafter filed written submissions which the court has had the benefit of reading and shall take same into account without necessarily rehashing the same in details in this decision.
The Submissions
In the submissions filed, the petitioner identifies the only one issue for determination by the court. That issue is expressed to be; whether the directive issued by the 2 nd respondent, dated 05.08.2024, relating to the terms of service of parastatals’ CEOs with fixed term contracts beyond the age of 60 years can countermand a judgment of the Court issued pursuant to an earlier circular?
The petitioner then reiterates the averments in the petition and asserts that since the decision of the court in Okiya Omtatah v Joseph Kinyua & another [2018] eKLR remains unchallenged, it is the prevailing position of the law that the contracts of chief executive officers serving in state corporations would be renewable based on performance and not on the general retirement age.
The decision in Okiya Omtata Okoiti vs the Head of Public Service & 3 Others (Petition No. 114 of 2016) was cited for the proposition that it is the discretion of the government in power, subject to the constitution and statute, to control its human resource function in order to what the political party in power could have pledged in its campaigns. That discretion, the court said, include the discretion to hire or retain where necessary some of the most experienced persons in the relevant field regardless of whether they are past retirement age.
The petitioner further cited to court the decision in the case of Wildlife Lodges Ltd v County Council of Narok & another [2005] 2 EA 344 (HCK) for the holding that It was the plain and unqualified obligation of every person against or in respect of whom an order was made by a court of competent jurisdiction to obey it until that order was discharged.
The petitioner also submits that a legitimate expectation arose when CEO’s who were past the retirement age had their contracts renewed based on the 2018 circular and the judgment in the case of Okiyah Omtata.
On what amounts to legitimate expectation, the petitioner cites the decision of the Supreme Court of Kenya in Kenya Revenue Authority v Export Trading Company Limited (Petition 20 of 2020) [2022] KESC 31 (KLR) (Civ) (17 June 2022 where the court held as follows;
“…in the CCK Case where it was held that legitimate expectation would arise when a body, by representation or by past practice, has aroused an expectation that is within its power to fulfill. For an expectation to be legitimate therefore, it must be founded upon a promise or practice by a public authority that is expected to fulfill the expectation. We then went on to find the emerging principles on legitimate expectation to be that; “a. there must be an express, clear and unambiguous promise given by a public authority; b. the expectation itself must be reasonable; c. the representation must be one which it was competent and lawful for the decision-maker to make; and (d) there cannot be a legitimate expectation against clear provisions of the law or the Constitution.”
The petitioner thus urges the court to find that the applicant has proved that the chief Executive officers who had been appointed during the tenure and currency of the 2018 secular and the ensuing judgment reasonably entertained the legitimate expectation that their tenure would be governed by the contracts signed with such state corporations and not by the general rules of the main civil service and that such would contradict an unchallenged court decision on the subject.
For the 1 st respondent, the submissions filed identify three issues for determination by the court to be; whether the first issue raised by the petitioner offends the doctrine of res judicata; whether the impugned circular contravenes the terms and conditions of service of CEOs serving in parastatals and; and, whether the petitioner is entitled to the reliefs sought.
On whether the first issue raised by the petitioner offends the doctrine of res judicata, the 1 st respondent submits that the issue raised by the petitioner similarly concerns the retirement age of an employee which has already been heard and determined by a court of competent jurisdiction and cannot therefore be litigated afresh in another court.
The case of Mwangi v Attorney General & another; Public Service Commission & 2 others (Interested Parties) (Employment and Labour Relations Petition E110 of 2024) [2024] KEELRC 13338 (KLR) (5 December 2024) (Judgment) is cited for the holding that where the president had reiterated the position of various statutes on retirement age, he could not be faulted for breaching the constitution by usurping the role and mandates of other institutions or organs.
The 1 st respondent then contends that the circular being challenged by the petitioner emanated from the presidential directive dated 8 th July, 2024 from which the cause of action in the cited suit and was thus res judicata. It was thus stressed that the 2 nd respondent in issuing the circular dated 5 th August, 2024 was only reiterating what is provided in law that is, Regulation 70(1) of the Public Service Commission Regulations which provide for the mandatory retirement age in the public service.
On whether the impugned circular contravenes the terms and conditions of service of CEOs serving in parastatals, the 1 st respondent asserts that while the circular reaffirmed the government policy on retirement age for public officers, it did so in recognition of the exceptions outlined in various laws as already provided in regulation 70(1) and it did not in any way violate the Constitution or the court’s judgment in Okiya Omtatah v Joseph Kinyua & another (2018) eKLR. The decisions in IEBC vs Maina Kiai & 5 Others (2017)eKLR, John Kennedy Agengo vs Moses L ochanda (2018)KEHC 4983 (KLR) and Amalgamated Union of kenya Metal Workers vs Pelican Signs Ltd (2022)KEELRC 1693 (KLR) were cited for the law that the doctrine of res judicata serves the purpose of avoiding duplicity of suits and bring finality to litigation
It is then pointed out that the subject circular was a reiteration of the presidential directive dated 4.7.2024 which had attracted the litigation in the Carolyne Wambui Mwangi’s case which was dismissed.
On whether the circular contravened the terms and conditions of service of CEOs serving in parastatals, the 1 st respondent relied on Regulation 70(1), Public Service Regulations, 2020, which sets the retirement age, subject to the constitution, section 80 of the Public Service Act, any other written law and specific government policy. The regulations are submitted to take cognizance and deference to the fixed contracts of those serving in parastatals hence aligns with and does not contradict the judgment in the Okiya Omtata’s case.
The law of contract was invited for the position that a contract cannot be enforced by or against a third party. For that proposition, the decisions in Savings and Loans K ltd vs Kanyenje Karangaita Gikombe & Another (2015 KECA 784 (KLR) and Agricultural Finance Corporation vs Lengetia Ltd were cited with a pointer that the affected CEOs had not challenged the circular.
In regard to the third issue, the 1 st respondent reiterates the submissions on the two issues above, add that the petition as drafted fails the precision test as enunciated in the case of Anarita Kirimi Njeru vs Republic (1979) eKLR and submits that the petitioner is not entitled to any of the remedies sought and thus the petition is a candidate for dismissal.
For the 2 nd and 3 rd Respondents Submissions were mounted on two issues; whether the decision in Okiya Omtata’s case barred the 2 nd respondent from issuing directives on retirement and whether the impugned circular was unconstitutional.
On the first issue, the respondents submit that the judge issued an order of declaration of unconstitutionality of the circular only to the extent that it commanded that civil servants be sent on compulsory leave without being heard but found no issue with the retirement age. The two respondents while agreeing with the petitioner’s position that the retirement of chief executive officers in parastatals cannot be capped at 60 submit that the decision absolved the Head of Public Service of usurping the role of the Public Service Commission. To the respondents, the court upheld the right of the Head of Public service to issue the circular.
The two respondents further submit that the directive does not seek to cancel any contract but it is communicating to the appointing authorities that they should not renew contracts of persons who have exceeded the age of 60 years.
Issues, Analysis and Determination.
Even though the petition may be seen and read to challenge the entire letter and spirit of the subject circular, a keener scrutiny reveals that the objection is largely targeting the aspect of extension of the contracts for those who may ask for such extension after attaining the statutory retirement age. The court reads the circular not to outlaw appointment of one who has attained retirement age as at the date the appointment is to be considered. That underscores the political purpose the corporations serve for the government of the day. The court views the parastatals to serve political purpose with the provisions of section 3 of the State corporations act in mind. The court also takes judicial notice on how the appointments and revocations of such appointments are done.
It is of note to the court that it takes no policy nor research, in the words of section 3 of the statute, for the president to create a state corporation. The boards which are the statutory appointing authorities are themselves apparently not hamstrung to restrict the appointment to persons yet to attain the retirement age.
Essentially, therefore, the petition questions how the circular sits with the decision of the High court in the okiya Omtata’s case. The substantive questions for determination is, therefore, whether the circular has the effect of overriding a decision of the court on the subject of the circular and if that sits well with the constitution. There are, however, the preliminary issues of whether; the matter is res judicate, if the dispute presents a constitutional question and, if the petitioner has the pedestal to being it.
Whether a petitioner has the locus standi in a matter of this nature has become a common question in the past with court consistently stating that the window created by article 22(1) and 258(20 entitles any person to bring a petition on behalf of the public as a show of public spiritedness. The Court of Appeal was very explicit on this point in the case of Mumo Matemu vs Trusted Society of Human Rights Alliace and Others (2013) eKLR where the court said; -
“… by dint of Articles 22 and 258 of the constitution, any person can institute proceedings under the bill of rights, on behalf of another person who cannot act in their own name, or as a member of, or in the interest of a group or class of persons, or in public interest”
In this petition I read the petitioner to contend that for the sake of the rule of law, a court decision on the subject of eligibility of Chief Executive Officers of parastatals should be respected and not overridden by circulars. That position the court finds to be an interest that transcends the personal interest of the petitioner and passes as an interest of the larger public that would seek to protect and further the aspirations of Kenyans that the country be led and governed on the value of the rule of law. The court thus finds that the petition raises a valid constitutional question, that the petitioner has the necessary standing to have mounted same.
On the substantive question of whether the circular infringes on the court decision, the answer must emerge from what the court, Ongaya, J, said in the judgment relied upon.
In the judgment the court found as a fact that the provisions of Article 132(3) of the constitution, section 8 of the National Government Coordination Act and Section 7 of the State Corporations Act, empower the president with the duty to direct and coordinate the functions of ministries, government departments and state corporations and that as established, the constitutional mandate of the office head of Public has the mandate to issue the circular as was done.
While the government and its agencies and departments have the duty to respect and enforce decision of the court, that duty doesn’t lessen the mandate of such agencies and departments to perform their duties as vested in law.
Circulars are permissible tools for delivery by the executive on its agenda to meet the promises made to the electorate. Such circular if aligned to the law invite no interference from the court.
Now, while the circular of 2018 and the ensuing judgment did create and bestowed on those contracted as chief executive officers of state corporations, the duty of the head of public service to help the president in his coordination and direction of state corporations was not annulled by the judgment.
What the circular dated did not purport to do and which it cannot be read to have done, is to authorize the termination of contracts legally negotiated and concluded, by appointment or extension, of such holders of offices by such chief executive officers. As is conceded and pointed out by the 2 nd and 3 rd Respondents, the court finds that the circular dated 5.8.2025 does not purport to usurp the powers of the appointing authority to review the contracts, upon evaluation based on performance. For avoidance of doubt, those chief executive officers who were in officer as at the date the circular of 5.8.2025 was issued had their contracts ringfenced by the contracts in force and never affected by the circular
In conclusion the court finds nothing ultra vires in the circular dated 5.8.2024 when viewed as against the court decision. Equally nothing is discerned to pass as unconstitutional.
The end result is that the petitioner is not entitled to the prayer for declaration as well as the mandamus sought.
The petition is dismissed but because the petition was clearly seeking enforcement of a value of the constitution, it was brought in public interest and the court orders that each party shall bear own costs.
Dated, signed and delivered at Lodwar, this 30 th day of July,2025.
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