1. The Petitioner is a duly registered Union whose core mandate is to represent academic staff in all public universities in Kenya. The petitioner was aggrieved by the 1st respondent's decision to issue a circular that effectively terminates the employment of all lecturers at public universities aged 70 years and over. The petitioner filed a petition dated 13th March 2026, seeking the following relief -
a) A Declaration that the 1st Respondent's Circular No. PSC/GEN/22/VOL.XIII (99) Mandatory Retirement Age for Lecturers and Researchers in Public Universities, Research Institutions and Equivalent Institutions is un-constitutional, null and void in relation to Articles 10, 41, 47 and 232 of the Constitution, the Universities Act No. 42 of 2012 and the Public Service Commission Act and the Employment Act 2017.
b) A Declaration that the Respondents have infringed on the Petitioners Constitutional rights under Articles 10, 41, 47 and 232 of the Constitution, 2010.
c) A Permanent Injunction be issued against the Respondents whether by themselves, their servants and or agents or whomsoever is acting on their behalf from implementing the Circular No. PSC/GEN/22/VOL.XIII (99) Mandatory Retirement Age for Lecturers and Researchers in Public Universities, Research Institutions and Equivalent Institutions.
d) Any other or further order this Honourable Court may deem fit to grant in the circumstances.
e) Interest at Court rates on (c) above from the date of filing suit until settlement in full
f) Cost of the suit.
2. The petitioner relied on the affidavit of Dr. Constantine Wasonga, sworn on 13th March 2026, in support of the petition. Dr. Wasonga was the Petitioner's Secretary General. He annexed and marked 'CW 1' a copy of the circular 1st Respondent No. PSC/GEN/22/VOL.XIII (99), titled 'Mandatory Retirement Age for Lecturers and Researchers in Public Universities, Research Institutions and Equivalent Institutions', which purported to terminate the employment of all lecturers at public universities aged over 70 years old as of 2nd March 2026. Also annexed, marked 'CW 2', is a copy of the duly registered Collective Bargaining Agreement for the period July 2021 (now past) up to 30th June 2025. The CBA was registered in court under the order of Justice Baari dated 24th April 2025. Annexed herein and marked 'CW 3' are copies of circulars from various universities implementing the CBA. The deponent also attached past court decisions, including ELRC Petition No. E083 of 2025 Nairobi – Dr. Shadrack Muya v RHE Board, Kenya Medical Research Institute & another, and ELRC Petition No. E018 of 2024 Kakamega – Universities Academic Staff Union Masinde Muliro University of Science and Technology (MMUST) Chapter v Masinde Muliro University of Science & Technology (MMUST), where the Court reaffirmed that lecturers in public universities are entitled to retirement according to the ages specified in the Collective Bargaining Agreements. (Annexed herein and marked 'CW 4')
3. The 1st respondent entered an appearance and was represented by Jacqueline Manani, Advocate, the Deputy Commission Secretary, who filed a replying affidavit sworn by Paul Famba on 30th April 2026. Mr. Paul Famba was the Commission Secretary and admitted to issuing the impugned circular of 2nd March 2026. He stated that the Commission issued Circular Ref. No. PSC/GEN/22/VOL.XIII (99) titled "Mandatory Retirement Age for Lecturers and Researchers in Public Universities, Research Institutions and Equivalent Institutions" (hereinafter "the Circular") pursuant to Article 234 of the Constitution, Section 80, and Section 92(2)(f) of the Public Service Commission Act, and Regulation 70(1)(c) of the Public Service Commission Regulations, 2020. Mr. Famba averred that it engaged the petitioner and the 3rd respondent, KUSU, having failed to attend the stakeholder engagement despite being invited. He produced marked as PF1 the generic human resource policies and procedures manual for public universities and constituent colleges in the Republic of Kenya. PF2 was an advertisement dated 10th March 2026 of draft human resource instruments for public universities and university constituent colleges. PF3 was an addendum circular dated 28th April 2026, with respect to the earlier impugned circular of 2nd March 2026, which the court noted clarified the transition.
4. The 3rd respondent filed a response through a replying affidavit sworn by Prof Daniel Mugendi, dated 8th June 2026, and among other things, it was admitted that consultations with stakeholders on the retirement age had taken place and stated that the CBA was to be negotiated within the existing legal framework.
5. While this petition was pending, Justice Rika (Nakuru ELRC) by Court Order dated 21st April 2026, transferred Petition No. 4 of 2008 (Kericho ELRC) to the Division, and the presiding Judge, Dr Gakeri, referred the same (No Nairobi ELRC PET NO. E157 OF 2026) to be heard together with the current petition. I directed this file to be used as a test case. The 1st to 3rd Respondents in Nairobi ELRC Petition No. E157 OF 2026 did not oppose the impugned circular. The 4th respondent, the Kenya Universities Staff Union, represented by Benjamin Bogongo, opposed the implementation of the impugned circular by way of an affidavit by Dr Charles Mukhwaya dated 18th March 2026.
DETERMINATION
Issues for determination
6. The petitioner outlined the following issues for determination in the petition -
a) Whether the 1st Respondent acted ultra vires on its mandate under the Constitution and the Public Service Commission Act by purporting to set retirement ages.
b) Whether the impugned circular violates existing CBAs and contracts of employment.
c) Whether the circular infringes constitutional rights under Articles 10, 41, 47, 232, and 234.
d) Whether the Respondents are bound by precedent and the rule of law.
7. The 1st respondent outlined the following issues for determination -
a) Whether the Commission acted within its constitutional and statutory mandate in issuing the Circular. b) Whether the Circular violates the existing Collective Bargaining Agreement.
c) Whether the Circular infringes the Petitioner's constitutional rights under Articles 10, 41, 47, 232, and 234.
d) Whether the Petitioner is entitled to the reliefs sought.
8. The 4th respondent identified the following issues for determination in the petition –
a. Whether Circular No. PSC/GEN/22/VOL.XIII (99) dated 2nd March 2026 is inconsistent with the Collective Bargaining Agreement dated 23rd November 2024 and therefore unlawful to the extent of such inconsistency.
b. Whether the 1st Respondent can lawfully vary, alter, or override the terms of a registered Collective Bargaining Agreement through an administrative circular without engaging in negotiation and mutual agreement with the parties to the CBA.
c. Whether the impugned circular violates the legitimate expectations of the affected employees regarding retirement age.
d. Whether the affected members of the 4th Respondent are entitled to the protection of the retirement age of sixty-five (65) years as provided under the Collective Bargaining Agreement dated 23rd November 2024.
9. The 3rd respondent relied on its replying affidavit.
10. The court, having perused the pleadings and heard the parties and taking into consideration the issues identified by the parties, discerned the issues for determination in the 2 petitions were as follows-
a. Whether the 1st Respondent acted ultra vires its mandate under the Constitution and the Public Service Commission Act by purporting to set retirement ages.
b. Whether the impugned circular violates existing CBAs and contracts of employment, and whether the affected members of the 4th Respondent are entitled to the protection of the retirement age of sixty-five (65) years as provided under the Collective Bargaining Agreement dated 23rd November 2024.
c. Whether the impugned circular violates the legitimate expectations of the affected employees regarding retirement age
d. Whether the circular infringes constitutional rights under Articles 10, 41, 47, 232, and 234.
e. whether the petitioner is entitled to relief sought
Whether the 1st Respondent acted ultra vires its mandate under the Constitution and the Public Service Commission Act by purporting to set retirement ages
The petitioner’s submissions
11. Paragraphs 10-12 of the Petition demonstrate that retirement age is deliberately excluded from the list of conditions of service under Section 1 of the Public Service Commission Act, Cap 185. The 1st Respondent, therefore, lacks jurisdiction to set or alter retirement ages. Its mandate under Article 234(2)(c) is limited to reviewing conditions of service as defined by statute, not extending to retirement age. The principle of legality requires that public bodies act strictly within the powers conferred by law. For instance, in Republic v Public Service Commission Ex Parte Peter Odhiambo [2019] eKLR). The court emphasized that when a statutory body exceeds its legal authority or acts outside its mandate, its decisions can be quashed for being ultra vires. Similarly, in Republic v KRA Ex Parte Aberdare Freight Services Ltd [2004] eKLR, KRA imposed demands on a clearing agent without proper statutory backing. The court quashed KRA's decision, finding it had acted beyond its legal mandate. In the instant Petition, the 1st Respondent does not have the legal mandate to alter the retirement ages id the Members of the Petitioner. The petitioner urged that this court to find that the 1st Respondent's Circular on retirement age of its members was ultra vires.
The 1st respondent’s submissions
12. The Petitioner argues that retirement age falls outside the Commission's mandate because it is not listed under "conditions of service" in Section 2 of the Public Service Commission Act. This argument is legally untenable for the following reasons- First, the definition of “conditions of service” in Section 2 is a general definition. The Commission’s specific power to set retirement age is separately and expressly conferred by Section 80 of the PSC Act, which provides that the retirement age of public officers shall be as prescribed in Regulations made under the Act, and by Section 92(2)(f), which grants the Commission express regulatory power to make Regulations on retirement age in the public service. Regulation 70(1)(c) of the Public Service Commission Regulations, 2020, made pursuant to those enabling provisions, makes specific provision for the retirement age of university lecturers. It is a cardinal rule of statutory interpretation that where there is a conflict between a general provision and a specific provision, the specific provision prevails. The Commission relied on the specific provisions of Sections 80 and 92(2)(f), not the general definition in Section 2. The Petitioner's selective reading of the statute cannot be sustained. Second, Article 234(2)(j) of the Constitution confers on the Commission power to perform any function and exercise any power as conferred by national legislation. Parliament enacted the PSC Act, conferring on the Commission the express power to set retirement ages. There is therefore a direct constitutional and statutory chain of authority supporting the Circular. Third, the courts have confirmed that the Commission has authority in this area. In Gitau v Attorney General & 2 others (Petition E085 of 2024) [2025] KEHC 11911 (KLR), the High Court held that: a. "Retirement age is a service condition which the 2nd Respondent is empowered under Article 234(2)(g) as read with Section 92(2)(f) of the Public Service Commission Act to determine alongside many other conditions, it is not a fundamental right... the business of setting service conditions, including setting the retirement age remains with the employer who is guided by a range of factors such as fiscal dynamics, sectoral needs, special and/or rare skills, workforce planning and so forth." The Commission submits that the Circular was therefore not ultra vires. It was a lawful exercise of the Commission's regulatory authority.
Decision
13. The question was whether, by setting the retirement date for members of the petitioner and the 4th respondent under the circular of 2nd March 2026, the 1st respondent acted within its mandate. Article 234 of the Constitution stipulates the mandate of the 1st respondent as follows-
1)The Commission shall—
(a)subject to this Constitution and legislation—
(i)establish and abolish offices in the public service; and
(ii)appoint persons to hold or act in those offices, and to confirm appointments;
(b)exercise disciplinary control over and remove persons holding or acting in those offices;
(c)promote the values and principles referred to in Articles 10 and 232 throughout the public service;
(d)investigate, monitor and evaluate the organisation, administration and personnel practices of the public service;
(e)ensure that the public service is efficient and effective;
(f)develop human resources in the public service;
(g)review and make recommendations to the national government in respect of conditions of service, code of conduct and qualifications of officers in the public service;
(h)evaluate and report to the President and Parliament on the extent to which the values and principles referred to in Articles 10 and 232 are complied with in the public service;
(i)hear and determine appeals in respect of county governments’ public service; and
(j)perform any other functions and exercise any other powers conferred by national legislation.’
14. The 1st respondent contended that its specific power to set retirement age is separately and expressly conferred by Section 80 of the Public Service Commission Act, which provides that the retirement age of public officers shall be as prescribed in Regulations made under the Act, and by Section 92(2)(f), which grants the Commission express regulatory power to make Regulations on retirement age in the public service. Regulation 70(1)(c) of the Public Service Commission Regulations, 2020, made pursuant to those enabling provisions, makes specific provision for the retirement age of university lecturers.
15. Section 80 of the Public Service Commission Act provides- ‘80. Retirement on the basis of age
(1)Where a public officer has attained the mandatory retirement age as may be prescribed in regulations—(a)the public officer shall retire from the service with effect from the date of attaining the mandatory retirement age;’’
16. Section 92(2)(f) provides as follows-‘92. Regulations
(1)The Commission may make regulations prescribing anything required by this Act to be prescribed generally for the better carrying into effect the provisions of this Act.(2)Without prejudice to the generality of subsection (f) guidelines on retirement; ‘’
17. The Public Service Commission Regulations of 2020 , Regulation 70(1)(c ) provides for retirement age as follows- ‘70.(1) Subject to the Constitution, section 80 of the Act, any
other relevant written law or a specific government policy, the mandatory retirement age in the public service shall be—
(a)sixty years;
(b) sixty-five years for persons with disability; and
(c) such age as may be determined by the Commission for lecturers and research scientists serving in public universities, research institutions or equivalent institutions as
determined by Commission in consultation with such universities, research institutions or equivalent institutions’’
18. The court found there is no ambiguity that the legislature has given the mandate to set retirement age for the public service including for members of the petitioners to the Public Service Commission. The court is aware that prior to the impugned circular of 2nd march 2026, the existing government policy was the 2009 policy which the impugned circular stated it replaced. The 2009 circular is as follows- ‘-‘REVIEW OF THE MANDATORY RETIREMENT AGE FOR PUBLIC SERVANTS
The current policy on retirement of Public Servants provides for a mandatory retirement age of 55 years. This is with the exception of Judges, Academic staff in Public Universities, Research Scientists and Public Servants with disabilities whose retirement age ranges from 60 years to 74 years.
Due to the current mandatory retirement at 55 years, the Public Service has continued to lose employees with critical skills while they are still productive. This is particularly so with regard to employees in the professional and technical areas in whom the Government has invested considerable resources in training and capacity building, and, who have several years of hands-on-experience in their respective professions. Their retirement has in most cases left succession gaps in key areas, necessitating requests for retention beyond retirement age or re-engagement on contract.
The current policy has also had the effect of rendering employees who would otherwise be productive, largely unproductive and reliant on the tax payer for funding of their pension when they should be contributing to the economy. Further, the East African Community (EAC) of which Kenya is a member and a signatory to the EAC Treaty, has adopted an official retirement age of 60 years.
In order to address the above challenges and in the spirit of harmonizing the retirement. age applicable to the East African Community Countries, the Government has decided to raise the mandatory retirement age for all Public Servants from 55 years to 60 years with effect from 1st April, 2009. The provisions in the Pensions Act Cap 189, various Pension Schemes and other Policy Guidelines governing the Civil Service, Disciplined Services, Teachers, State Corporations, Public Universities and the Armed Forces regarding compulsory and voluntary retirement will remain.
Employees serving on contract as at 5th March, 2009 after attainment of the age of 55 years will however continue to serve for the duration of these contracts. Contracts expiring before the attainment of the age of 60 years will be renewed in accordance with the provisions of the contracts.
Employees who had already received retirement notices or had their pension claims already prepared, but had not attained the age of 55 years as at 5th March, 2009, will continue to serve until they attain the age of 60 years if they so wish.
All Authorized Officers, Chief Executive Officers of State Corporations, Vice-Chancellors of Public Universities and Clerks to Local Authorities are required to note and implement this Policy accordingly.
Amb. Francis K. Muthaura, E.G.H.
PERMANENT SECRETARY, SECRETARY TO THE CABINET AND HEAD OF THE PUBLIC SERVICE’’
19. Under the Constitution, 2010, the 1st respondent took over the administration of public service as provided under Article 234 of the Constitution. I thus find that the Public Service Commission also took over the power to set the retirement age in the public service as pronounced in the Public Service Commission Act, section 80 and 92(2)(F) and Regulation 70(1)(c )Public Service Commission Regulations of 2020, a function previously held by the Head of public service. In the upshot, I hold the 1st respondent acted within its statutory mandate in setting a new retirement age for members of the petitioners under the circular dated 2nd March 2026.
Whether the impugned circular violates existing CBAs and contracts of employment and Whether the affected members of the 4th Respondent are entitled to the protection of the retirement age of sixty-five (65) years as provided under the Collective Bargaining Agreement dated 23rd November 2024.
20. The court noted that the petitioner negotiated a CBA dated 23rd November 2024, registered in court by Justice Baari, on the 24Th April 2025. Clause 2 of the CBA provides for the retirement ages as follows- ‘2. Retirement age for all academic members of staff shall be harmonized and set as follows:
i. 70 years for Graduate Assistant, Tutorial Fellow and Assistant Lecturer; and
ii. 74 years for Lecturer, Senior Lecturer, Associate Professor and Professor.
Transitional clauses:
i. All new academic staff hires shall be subject to the new retirement age from the date of their appointment.
ii. For academic staff with existing contracts and in-post academic staff with a retirement age that is higher than 74 years for Assistant Lecturers, Senior Lecturers, Associate Professors and Professors, the current terms shall be maintained until the end of their contractual period.’
21. The impugned circular capped mandatory retirement age to 70 years for professors and associate professors, reducing the years from 74 years under the 2009 government policy. The CBA was negotiated under the 2009 policy which capped retirement age for members of the petitioner to 74 years. By reducing the capping mandatory retirement age to 70 years of members of the petitioner, the 1st respondent decision affected the existing CBAs and consequently contracts of employments of members of the petitioner. The petitioner submitted that Paragraphs 13, 21–25, 31, 33 of the petition establish that the retirement ages of academic staff were already harmonized and entrenched in the 2021-2025 CBA, duly registered and binding under Section 57 of the Labour Relations Act, 2007. Article 41(5) of the Constitution guarantees the right to collective bargaining. The unilateral alteration of retirement ages undermines this right and violates the principle of pacta sunt servanda which provides that agreements must be kept. In Kenya Union of Domestic, Hotels, Educational Institutions & Hospital Workers (KUDHEIHA) v Aga Khan University [2015] eKLR, the Court held that CBAs are binding and cannot be unilaterally varied. That there is an already existing Collective Bargaining Agreement which term has not yet lapsed and that the Circular No. PSC/GEN/22/VOL.XIII (99) intends to violate the current and existing Collective Bargaining Agreement between the Petitioner and the Employer Federation IPUCCF. That the intended Circular by the 1st Respondent ought to be declared unconstitutional, null and void.
22. Conversely the 1st respondent submitted - The Petitioner relies heavily on the Collective Bargaining Agreement (CBA) dated 23rd November, 2024 between UASU and IPUCCF, which set retirement ages at 70 years for Graduate Assistants, Tutorial Fellows, and Assistant Lecturers, and 74 years for Lecturers, Senior Lecturers, Associate Professors, and Professors. The Commission's position is that while the right to collective bargaining is constitutionally guaranteed under Article 41(5), that right operates within the framework of the law. Parties cannot through a CBA contract out of mandatory statutory provisions. This position is firmly established by the courts. In Kenya Universities Staff Union v Council of Jomo Kenyatta University of Agriculture and Technology & another [2023] KEELRC 1754 (KLR), the Court held that members of a trade union, being public officers, are bound by the statutory retirement age provisions and that a CBA cannot override mandatory statutory requirements. Similarly, in Wafula v Bukura Agricultural College [2025] KEELRC 3487 (KLR), the Court confirmed that a contract that runs against the law is not only unlawful and illegal but null and void ab initio. The same principle applies to any CBA term that purports to set retirement ages inconsistent with statutory provisions. Further, the retirement ages in the Circular are, in any event, consistent with the retirement ages arrived at consensually during the stakeholder engagement with University Councils, Vice-Chancellors, Principals, and with the Petitioner itself on 3rd July, 2025. The agreed positions are also reflected in the draft Generic Human Resource Manual for Public Universities, which was publicly advertised for further stakeholder input. The Petitioner cannot now claim that the retirement ages in the Circular are a surprise or were imposed without its knowledge, when the evidence shows that the Petitioner was consulted and agreement was reached.
23. The court was of the opinion that the CBA held by the petitioner was within the 2009 government policy (supra) on retirement age being capped at 74 years. the policy has now changed and reduced the mandatory retirement age from 74 years to 70 years. The court has held that CBAs must be negotiated within the existing government policy. The Court in Nairobi ELRC C.B.A. No. 1 of 2020, C.B.A. No. 2 of 2 of 2020 and C.B.A. No. 3 of 2020, Interpublic Universities Council Consultative Forum of the Federation of Kenya Employers & Others –v- KUDHEIHA, UASU & KUSU affirmed that parties cannot negotiate outside public policy and guidelines. I uphold the decision to apply in the instant case. I perused the policy and found the CBA was for the 2021-2025 cycle. The circular is for 2nd March 2026. The court then finds that the circular can only affect the next cycle. The court having held the 1st respondent action of setting the retirement age was within its mandate, then it cannot be said that it violated the existing CBA or employment contract. As relates to the petition of the 4th respondent I uphold my decision in PETITION NO. E230 OF 2025 Annmarie Mahaga and Others Versus Inter-Public Universities Councils Consultative Forum Of The Federation Of Kenya Employers and others where I held as follows-‘The issue of the retirement age of KUSU members has been determined by this court with finality. The court finds that the public policy on retirement age of KUSU members is as stated in the government policy of 2009 cited in the decision in Kenya Universities Staff Union & 3 others v Masinde Muliro University of Science & Technology [2021] eKLR where, while rejecting application for contempt of court against the Respondent for retiring KUSU members at the 60th year, the court cited the Human Resource Policies and Procedures Manual for the Public Service of May, 2016 clause D.21 which provides:- ‘All officers shall retire from the Service on attaining the mandatory retirement age of 60 years, 65 years for persons with disabilities and/or as may be prescribed by the government from time to time’’. The court held the lawful retirement age of KUSU members to be at 60 years.
25. Having found no further government policy post the 2009 one posted above, I find the increase of retirement age to 65 by the parties to the CBA held by KUSU was illegal. The university had no authority to increase the retirement age of public servants. (judgment delivered on the 19th June 2026). I uphold the decision to apply in the determination of the case by KUSU.
Whether the impugned circular violates the legitimate expectations of the affected employees regarding retirement age
26. The petitioner submitted that –‘Paragraph 26-27 of the Petition cites ELRC Petition No. E083 of 2025 (Dr. Shadrack Muya v RHE Board, KEMRI & Another) and ELRC Petition No. E018 of 2024 (UASU MMUST Chapter v MMUST), where the Court affirmed that Lecturers' retirement ages must follow CBAs. The Respondents' circular seeks to circumvent binding judicial decisions, violating the doctrine of stare decisis and the rule of law under Article 10. Paragraphs 24, 32 and 36 of the Petition show that academic staff had a legitimate expectation that retirement ages would remain as per CBAs and university circulars. In Keroche Industries Ltd v Kenya Revenue Authority & 5 Others [2007] eKLR, the Court held that legitimate expectation arises where a public body makes representations that individuals rely upon. In this case, the academic staff are bound by the already existing CBA. Further, paragraphs 39-41 demonstrate that implementation of the circular will cause irreparable harm, loss of accrued benefits, disruption of academic programs, and violation of rights. That the principle of non-retroactivity of administrative decisions requires orderly transition, not abrupt changes affecting ongoing contracts and that the Respondents are bound by the Precedents and the Rule of Law.
27. The 4th respondent canvassed on the question of legitimate expectation as follows-The doctrine of legitimate expectation protects expectations that are reasonable, lawful, and grounded in a clear representation, established practice, or an enforceable legal instrument. In the present case, the affected employees’ expectation that they would retire at the age of sixty-five (65) years is not merely subjective or aspirational, but is anchored in a duly negotiated and registered Collective Bargaining Agreement (CBA), which expressly provides for that retirement age for the relevant categories of employees. Once the CBA was registered, its terms acquired binding legal force and were incorporated into the individual contracts of employment. This created a clear, specific, and enforceable representation by the employer that employees falling within the covered categories would retire at sixty five (65) years. On that basis, the employees developed a legitimate and objectively justifiable expectation that the agreed retirement age would not be altered except through lawful renegotiation with the union representing them. The impugned circular, however, purports to introduce a reduced retirement age of sixty (60) years without reference to, or preservation of, the CBA provisions. This unilateral departure from a binding contractual and statutory framework defeats the employees’ accrued expectations and does so without consultation, negotiation, or any lawful process of variation. As such, it undermines both procedural fairness and substantive fairness in employment relations. The Supreme Court in Kenya Revenue Authority v Export Trading Company Limited (Petition No. 20 of 2020) [2022] KESC 31 (KLR), held “[52] As can be discerned from these two definitions, legitimate expectation may take many forms. It may take the form of an expectation to succeed
[...truncated]
a) A Declaration that the 1st Respondent's Circular No. PSC/GEN/22/VOL.XIII (99) Mandatory Retirement Age for Lecturers and Researchers in Public Universities, Research Institutions and Equivalent Institutions is un-constitutional, null and void in relation to Articles 10, 41, 47 and 232 of the Constitution, the Universities Act No. 42 of 2012 and the Public Service Commission Act and the Employment Act 2017.
b) A Declaration that the Respondents have infringed on the Petitioners Constitutional rights under Articles 10, 41, 47 and 232 of the Constitution, 2010.
c) A Permanent Injunction be issued against the Respondents whether by themselves, their servants and or agents or whomsoever is acting on their behalf from implementing the Circular No. PSC/GEN/22/VOL.XIII (99) Mandatory Retirement Age for Lecturers and Researchers in Public Universities, Research Institutions and Equivalent Institutions.
d) Any other or further order this Honourable Court may deem fit to grant in the circumstances.
e) Interest at Court rates on (c) above from the date of filing suit until settlement in full
f) Cost of the suit.
2. The petitioner relied on the affidavit of Dr. Constantine Wasonga, sworn on 13th March 2026, in support of the petition. Dr. Wasonga was the Petitioner's Secretary General. He annexed and marked 'CW 1' a copy of the circular 1st Respondent No. PSC/GEN/22/VOL.XIII (99), titled 'Mandatory Retirement Age for Lecturers and Researchers in Public Universities, Research Institutions and Equivalent Institutions', which purported to terminate the employment of all lecturers at public universities aged over 70 years old as of 2nd March 2026. Also annexed, marked 'CW 2', is a copy of the duly registered Collective Bargaining Agreement for the period July 2021 (now past) up to 30th June 2025. The CBA was registered in court under the order of Justice Baari dated 24th April 2025. Annexed herein and marked 'CW 3' are copies of circulars from various universities implementing the CBA. The deponent also attached past court decisions, including ELRC Petition No. E083 of 2025 Nairobi – Dr. Shadrack Muya v RHE Board, Kenya Medical Research Institute & another, and ELRC Petition No. E018 of 2024 Kakamega – Universities Academic Staff Union Masinde Muliro University of Science and Technology (MMUST) Chapter v Masinde Muliro University of Science & Technology (MMUST), where the Court reaffirmed that lecturers in public universities are entitled to retirement according to the ages specified in the Collective Bargaining Agreements. (Annexed herein and marked 'CW 4')
3. The 1st respondent entered an appearance and was represented by Jacqueline Manani, Advocate, the Deputy Commission Secretary, who filed a replying affidavit sworn by Paul Famba on 30th April 2026. Mr. Paul Famba was the Commission Secretary and admitted to issuing the impugned circular of 2nd March 2026. He stated that the Commission issued Circular Ref. No. PSC/GEN/22/VOL.XIII (99) titled "Mandatory Retirement Age for Lecturers and Researchers in Public Universities, Research Institutions and Equivalent Institutions" (hereinafter "the Circular") pursuant to Article 234 of the Constitution, Section 80, and Section 92(2)(f) of the Public Service Commission Act, and Regulation 70(1)(c) of the Public Service Commission Regulations, 2020. Mr. Famba averred that it engaged the petitioner and the 3rd respondent, KUSU, having failed to attend the stakeholder engagement despite being invited. He produced marked as PF1 the generic human resource policies and procedures manual for public universities and constituent colleges in the Republic of Kenya. PF2 was an advertisement dated 10th March 2026 of draft human resource instruments for public universities and university constituent colleges. PF3 was an addendum circular dated 28th April 2026, with respect to the earlier impugned circular of 2nd March 2026, which the court noted clarified the transition.
4. The 3rd respondent filed a response through a replying affidavit sworn by Prof Daniel Mugendi, dated 8th June 2026, and among other things, it was admitted that consultations with stakeholders on the retirement age had taken place and stated that the CBA was to be negotiated within the existing legal framework.
5. While this petition was pending, Justice Rika (Nakuru ELRC) by Court Order dated 21st April 2026, transferred Petition No. 4 of 2008 (Kericho ELRC) to the Division, and the presiding Judge, Dr Gakeri, referred the same (No Nairobi ELRC PET NO. E157 OF 2026) to be heard together with the current petition. I directed this file to be used as a test case. The 1st to 3rd Respondents in Nairobi ELRC Petition No. E157 OF 2026 did not oppose the impugned circular. The 4th respondent, the Kenya Universities Staff Union, represented by Benjamin Bogongo, opposed the implementation of the impugned circular by way of an affidavit by Dr Charles Mukhwaya dated 18th March 2026.
DETERMINATION
Issues for determination
6. The petitioner outlined the following issues for determination in the petition -
a) Whether the 1st Respondent acted ultra vires on its mandate under the Constitution and the Public Service Commission Act by purporting to set retirement ages.
b) Whether the impugned circular violates existing CBAs and contracts of employment.
c) Whether the circular infringes constitutional rights under Articles 10, 41, 47, 232, and 234.
d) Whether the Respondents are bound by precedent and the rule of law.
7. The 1st respondent outlined the following issues for determination -
a) Whether the Commission acted within its constitutional and statutory mandate in issuing the Circular. b) Whether the Circular violates the existing Collective Bargaining Agreement.
c) Whether the Circular infringes the Petitioner's constitutional rights under Articles 10, 41, 47, 232, and 234.
d) Whether the Petitioner is entitled to the reliefs sought.
8. The 4th respondent identified the following issues for determination in the petition –
a. Whether Circular No. PSC/GEN/22/VOL.XIII (99) dated 2nd March 2026 is inconsistent with the Collective Bargaining Agreement dated 23rd November 2024 and therefore unlawful to the extent of such inconsistency.
b. Whether the 1st Respondent can lawfully vary, alter, or override the terms of a registered Collective Bargaining Agreement through an administrative circular without engaging in negotiation and mutual agreement with the parties to the CBA.
c. Whether the impugned circular violates the legitimate expectations of the affected employees regarding retirement age.
d. Whether the affected members of the 4th Respondent are entitled to the protection of the retirement age of sixty-five (65) years as provided under the Collective Bargaining Agreement dated 23rd November 2024.
9. The 3rd respondent relied on its replying affidavit.
10. The court, having perused the pleadings and heard the parties and taking into consideration the issues identified by the parties, discerned the issues for determination in the 2 petitions were as follows-
a. Whether the 1st Respondent acted ultra vires its mandate under the Constitution and the Public Service Commission Act by purporting to set retirement ages.
b. Whether the impugned circular violates existing CBAs and contracts of employment, and whether the affected members of the 4th Respondent are entitled to the protection of the retirement age of sixty-five (65) years as provided under the Collective Bargaining Agreement dated 23rd November 2024.
c. Whether the impugned circular violates the legitimate expectations of the affected employees regarding retirement age
d. Whether the circular infringes constitutional rights under Articles 10, 41, 47, 232, and 234.
e. whether the petitioner is entitled to relief sought
Whether the 1st Respondent acted ultra vires its mandate under the Constitution and the Public Service Commission Act by purporting to set retirement ages
The petitioner’s submissions
11. Paragraphs 10-12 of the Petition demonstrate that retirement age is deliberately excluded from the list of conditions of service under Section 1 of the Public Service Commission Act, Cap 185. The 1st Respondent, therefore, lacks jurisdiction to set or alter retirement ages. Its mandate under Article 234(2)(c) is limited to reviewing conditions of service as defined by statute, not extending to retirement age. The principle of legality requires that public bodies act strictly within the powers conferred by law. For instance, in Republic v Public Service Commission Ex Parte Peter Odhiambo [2019] eKLR). The court emphasized that when a statutory body exceeds its legal authority or acts outside its mandate, its decisions can be quashed for being ultra vires. Similarly, in Republic v KRA Ex Parte Aberdare Freight Services Ltd [2004] eKLR, KRA imposed demands on a clearing agent without proper statutory backing. The court quashed KRA's decision, finding it had acted beyond its legal mandate. In the instant Petition, the 1st Respondent does not have the legal mandate to alter the retirement ages id the Members of the Petitioner. The petitioner urged that this court to find that the 1st Respondent's Circular on retirement age of its members was ultra vires.
The 1st respondent’s submissions
12. The Petitioner argues that retirement age falls outside the Commission's mandate because it is not listed under "conditions of service" in Section 2 of the Public Service Commission Act. This argument is legally untenable for the following reasons- First, the definition of “conditions of service” in Section 2 is a general definition. The Commission’s specific power to set retirement age is separately and expressly conferred by Section 80 of the PSC Act, which provides that the retirement age of public officers shall be as prescribed in Regulations made under the Act, and by Section 92(2)(f), which grants the Commission express regulatory power to make Regulations on retirement age in the public service. Regulation 70(1)(c) of the Public Service Commission Regulations, 2020, made pursuant to those enabling provisions, makes specific provision for the retirement age of university lecturers. It is a cardinal rule of statutory interpretation that where there is a conflict between a general provision and a specific provision, the specific provision prevails. The Commission relied on the specific provisions of Sections 80 and 92(2)(f), not the general definition in Section 2. The Petitioner's selective reading of the statute cannot be sustained. Second, Article 234(2)(j) of the Constitution confers on the Commission power to perform any function and exercise any power as conferred by national legislation. Parliament enacted the PSC Act, conferring on the Commission the express power to set retirement ages. There is therefore a direct constitutional and statutory chain of authority supporting the Circular. Third, the courts have confirmed that the Commission has authority in this area. In Gitau v Attorney General & 2 others (Petition E085 of 2024) [2025] KEHC 11911 (KLR), the High Court held that: a. "Retirement age is a service condition which the 2nd Respondent is empowered under Article 234(2)(g) as read with Section 92(2)(f) of the Public Service Commission Act to determine alongside many other conditions, it is not a fundamental right... the business of setting service conditions, including setting the retirement age remains with the employer who is guided by a range of factors such as fiscal dynamics, sectoral needs, special and/or rare skills, workforce planning and so forth." The Commission submits that the Circular was therefore not ultra vires. It was a lawful exercise of the Commission's regulatory authority.
Decision
13. The question was whether, by setting the retirement date for members of the petitioner and the 4th respondent under the circular of 2nd March 2026, the 1st respondent acted within its mandate. Article 234 of the Constitution stipulates the mandate of the 1st respondent as follows-
1)The Commission shall—
(a)subject to this Constitution and legislation—
(i)establish and abolish offices in the public service; and
(ii)appoint persons to hold or act in those offices, and to confirm appointments;
(b)exercise disciplinary control over and remove persons holding or acting in those offices;
(c)promote the values and principles referred to in Articles 10 and 232 throughout the public service;
(d)investigate, monitor and evaluate the organisation, administration and personnel practices of the public service;
(e)ensure that the public service is efficient and effective;
(f)develop human resources in the public service;
(g)review and make recommendations to the national government in respect of conditions of service, code of conduct and qualifications of officers in the public service;
(h)evaluate and report to the President and Parliament on the extent to which the values and principles referred to in Articles 10 and 232 are complied with in the public service;
(i)hear and determine appeals in respect of county governments’ public service; and
(j)perform any other functions and exercise any other powers conferred by national legislation.’
14. The 1st respondent contended that its specific power to set retirement age is separately and expressly conferred by Section 80 of the Public Service Commission Act, which provides that the retirement age of public officers shall be as prescribed in Regulations made under the Act, and by Section 92(2)(f), which grants the Commission express regulatory power to make Regulations on retirement age in the public service. Regulation 70(1)(c) of the Public Service Commission Regulations, 2020, made pursuant to those enabling provisions, makes specific provision for the retirement age of university lecturers.
15. Section 80 of the Public Service Commission Act provides- ‘80. Retirement on the basis of age
(1)Where a public officer has attained the mandatory retirement age as may be prescribed in regulations—(a)the public officer shall retire from the service with effect from the date of attaining the mandatory retirement age;’’
16. Section 92(2)(f) provides as follows-‘92. Regulations
(1)The Commission may make regulations prescribing anything required by this Act to be prescribed generally for the better carrying into effect the provisions of this Act.(2)Without prejudice to the generality of subsection (f) guidelines on retirement; ‘’
17. The Public Service Commission Regulations of 2020 , Regulation 70(1)(c ) provides for retirement age as follows- ‘70.(1) Subject to the Constitution, section 80 of the Act, any
other relevant written law or a specific government policy, the mandatory retirement age in the public service shall be—
(a)sixty years;
(b) sixty-five years for persons with disability; and
(c) such age as may be determined by the Commission for lecturers and research scientists serving in public universities, research institutions or equivalent institutions as
determined by Commission in consultation with such universities, research institutions or equivalent institutions’’
18. The court found there is no ambiguity that the legislature has given the mandate to set retirement age for the public service including for members of the petitioners to the Public Service Commission. The court is aware that prior to the impugned circular of 2nd march 2026, the existing government policy was the 2009 policy which the impugned circular stated it replaced. The 2009 circular is as follows- ‘-‘REVIEW OF THE MANDATORY RETIREMENT AGE FOR PUBLIC SERVANTS
The current policy on retirement of Public Servants provides for a mandatory retirement age of 55 years. This is with the exception of Judges, Academic staff in Public Universities, Research Scientists and Public Servants with disabilities whose retirement age ranges from 60 years to 74 years.
Due to the current mandatory retirement at 55 years, the Public Service has continued to lose employees with critical skills while they are still productive. This is particularly so with regard to employees in the professional and technical areas in whom the Government has invested considerable resources in training and capacity building, and, who have several years of hands-on-experience in their respective professions. Their retirement has in most cases left succession gaps in key areas, necessitating requests for retention beyond retirement age or re-engagement on contract.
The current policy has also had the effect of rendering employees who would otherwise be productive, largely unproductive and reliant on the tax payer for funding of their pension when they should be contributing to the economy. Further, the East African Community (EAC) of which Kenya is a member and a signatory to the EAC Treaty, has adopted an official retirement age of 60 years.
In order to address the above challenges and in the spirit of harmonizing the retirement. age applicable to the East African Community Countries, the Government has decided to raise the mandatory retirement age for all Public Servants from 55 years to 60 years with effect from 1st April, 2009. The provisions in the Pensions Act Cap 189, various Pension Schemes and other Policy Guidelines governing the Civil Service, Disciplined Services, Teachers, State Corporations, Public Universities and the Armed Forces regarding compulsory and voluntary retirement will remain.
Employees serving on contract as at 5th March, 2009 after attainment of the age of 55 years will however continue to serve for the duration of these contracts. Contracts expiring before the attainment of the age of 60 years will be renewed in accordance with the provisions of the contracts.
Employees who had already received retirement notices or had their pension claims already prepared, but had not attained the age of 55 years as at 5th March, 2009, will continue to serve until they attain the age of 60 years if they so wish.
All Authorized Officers, Chief Executive Officers of State Corporations, Vice-Chancellors of Public Universities and Clerks to Local Authorities are required to note and implement this Policy accordingly.
Amb. Francis K. Muthaura, E.G.H.
PERMANENT SECRETARY, SECRETARY TO THE CABINET AND HEAD OF THE PUBLIC SERVICE’’
19. Under the Constitution, 2010, the 1st respondent took over the administration of public service as provided under Article 234 of the Constitution. I thus find that the Public Service Commission also took over the power to set the retirement age in the public service as pronounced in the Public Service Commission Act, section 80 and 92(2)(F) and Regulation 70(1)(c )Public Service Commission Regulations of 2020, a function previously held by the Head of public service. In the upshot, I hold the 1st respondent acted within its statutory mandate in setting a new retirement age for members of the petitioners under the circular dated 2nd March 2026.
Whether the impugned circular violates existing CBAs and contracts of employment and Whether the affected members of the 4th Respondent are entitled to the protection of the retirement age of sixty-five (65) years as provided under the Collective Bargaining Agreement dated 23rd November 2024.
20. The court noted that the petitioner negotiated a CBA dated 23rd November 2024, registered in court by Justice Baari, on the 24Th April 2025. Clause 2 of the CBA provides for the retirement ages as follows- ‘2. Retirement age for all academic members of staff shall be harmonized and set as follows:
i. 70 years for Graduate Assistant, Tutorial Fellow and Assistant Lecturer; and
ii. 74 years for Lecturer, Senior Lecturer, Associate Professor and Professor.
Transitional clauses:
i. All new academic staff hires shall be subject to the new retirement age from the date of their appointment.
ii. For academic staff with existing contracts and in-post academic staff with a retirement age that is higher than 74 years for Assistant Lecturers, Senior Lecturers, Associate Professors and Professors, the current terms shall be maintained until the end of their contractual period.’
21. The impugned circular capped mandatory retirement age to 70 years for professors and associate professors, reducing the years from 74 years under the 2009 government policy. The CBA was negotiated under the 2009 policy which capped retirement age for members of the petitioner to 74 years. By reducing the capping mandatory retirement age to 70 years of members of the petitioner, the 1st respondent decision affected the existing CBAs and consequently contracts of employments of members of the petitioner. The petitioner submitted that Paragraphs 13, 21–25, 31, 33 of the petition establish that the retirement ages of academic staff were already harmonized and entrenched in the 2021-2025 CBA, duly registered and binding under Section 57 of the Labour Relations Act, 2007. Article 41(5) of the Constitution guarantees the right to collective bargaining. The unilateral alteration of retirement ages undermines this right and violates the principle of pacta sunt servanda which provides that agreements must be kept. In Kenya Union of Domestic, Hotels, Educational Institutions & Hospital Workers (KUDHEIHA) v Aga Khan University [2015] eKLR, the Court held that CBAs are binding and cannot be unilaterally varied. That there is an already existing Collective Bargaining Agreement which term has not yet lapsed and that the Circular No. PSC/GEN/22/VOL.XIII (99) intends to violate the current and existing Collective Bargaining Agreement between the Petitioner and the Employer Federation IPUCCF. That the intended Circular by the 1st Respondent ought to be declared unconstitutional, null and void.
22. Conversely the 1st respondent submitted - The Petitioner relies heavily on the Collective Bargaining Agreement (CBA) dated 23rd November, 2024 between UASU and IPUCCF, which set retirement ages at 70 years for Graduate Assistants, Tutorial Fellows, and Assistant Lecturers, and 74 years for Lecturers, Senior Lecturers, Associate Professors, and Professors. The Commission's position is that while the right to collective bargaining is constitutionally guaranteed under Article 41(5), that right operates within the framework of the law. Parties cannot through a CBA contract out of mandatory statutory provisions. This position is firmly established by the courts. In Kenya Universities Staff Union v Council of Jomo Kenyatta University of Agriculture and Technology & another [2023] KEELRC 1754 (KLR), the Court held that members of a trade union, being public officers, are bound by the statutory retirement age provisions and that a CBA cannot override mandatory statutory requirements. Similarly, in Wafula v Bukura Agricultural College [2025] KEELRC 3487 (KLR), the Court confirmed that a contract that runs against the law is not only unlawful and illegal but null and void ab initio. The same principle applies to any CBA term that purports to set retirement ages inconsistent with statutory provisions. Further, the retirement ages in the Circular are, in any event, consistent with the retirement ages arrived at consensually during the stakeholder engagement with University Councils, Vice-Chancellors, Principals, and with the Petitioner itself on 3rd July, 2025. The agreed positions are also reflected in the draft Generic Human Resource Manual for Public Universities, which was publicly advertised for further stakeholder input. The Petitioner cannot now claim that the retirement ages in the Circular are a surprise or were imposed without its knowledge, when the evidence shows that the Petitioner was consulted and agreement was reached.
23. The court was of the opinion that the CBA held by the petitioner was within the 2009 government policy (supra) on retirement age being capped at 74 years. the policy has now changed and reduced the mandatory retirement age from 74 years to 70 years. The court has held that CBAs must be negotiated within the existing government policy. The Court in Nairobi ELRC C.B.A. No. 1 of 2020, C.B.A. No. 2 of 2 of 2020 and C.B.A. No. 3 of 2020, Interpublic Universities Council Consultative Forum of the Federation of Kenya Employers & Others –v- KUDHEIHA, UASU & KUSU affirmed that parties cannot negotiate outside public policy and guidelines. I uphold the decision to apply in the instant case. I perused the policy and found the CBA was for the 2021-2025 cycle. The circular is for 2nd March 2026. The court then finds that the circular can only affect the next cycle. The court having held the 1st respondent action of setting the retirement age was within its mandate, then it cannot be said that it violated the existing CBA or employment contract. As relates to the petition of the 4th respondent I uphold my decision in PETITION NO. E230 OF 2025 Annmarie Mahaga and Others Versus Inter-Public Universities Councils Consultative Forum Of The Federation Of Kenya Employers and others where I held as follows-‘The issue of the retirement age of KUSU members has been determined by this court with finality. The court finds that the public policy on retirement age of KUSU members is as stated in the government policy of 2009 cited in the decision in Kenya Universities Staff Union & 3 others v Masinde Muliro University of Science & Technology [2021] eKLR where, while rejecting application for contempt of court against the Respondent for retiring KUSU members at the 60th year, the court cited the Human Resource Policies and Procedures Manual for the Public Service of May, 2016 clause D.21 which provides:- ‘All officers shall retire from the Service on attaining the mandatory retirement age of 60 years, 65 years for persons with disabilities and/or as may be prescribed by the government from time to time’’. The court held the lawful retirement age of KUSU members to be at 60 years.
25. Having found no further government policy post the 2009 one posted above, I find the increase of retirement age to 65 by the parties to the CBA held by KUSU was illegal. The university had no authority to increase the retirement age of public servants. (judgment delivered on the 19th June 2026). I uphold the decision to apply in the determination of the case by KUSU.
Whether the impugned circular violates the legitimate expectations of the affected employees regarding retirement age
26. The petitioner submitted that –‘Paragraph 26-27 of the Petition cites ELRC Petition No. E083 of 2025 (Dr. Shadrack Muya v RHE Board, KEMRI & Another) and ELRC Petition No. E018 of 2024 (UASU MMUST Chapter v MMUST), where the Court affirmed that Lecturers' retirement ages must follow CBAs. The Respondents' circular seeks to circumvent binding judicial decisions, violating the doctrine of stare decisis and the rule of law under Article 10. Paragraphs 24, 32 and 36 of the Petition show that academic staff had a legitimate expectation that retirement ages would remain as per CBAs and university circulars. In Keroche Industries Ltd v Kenya Revenue Authority & 5 Others [2007] eKLR, the Court held that legitimate expectation arises where a public body makes representations that individuals rely upon. In this case, the academic staff are bound by the already existing CBA. Further, paragraphs 39-41 demonstrate that implementation of the circular will cause irreparable harm, loss of accrued benefits, disruption of academic programs, and violation of rights. That the principle of non-retroactivity of administrative decisions requires orderly transition, not abrupt changes affecting ongoing contracts and that the Respondents are bound by the Precedents and the Rule of Law.
27. The 4th respondent canvassed on the question of legitimate expectation as follows-The doctrine of legitimate expectation protects expectations that are reasonable, lawful, and grounded in a clear representation, established practice, or an enforceable legal instrument. In the present case, the affected employees’ expectation that they would retire at the age of sixty-five (65) years is not merely subjective or aspirational, but is anchored in a duly negotiated and registered Collective Bargaining Agreement (CBA), which expressly provides for that retirement age for the relevant categories of employees. Once the CBA was registered, its terms acquired binding legal force and were incorporated into the individual contracts of employment. This created a clear, specific, and enforceable representation by the employer that employees falling within the covered categories would retire at sixty five (65) years. On that basis, the employees developed a legitimate and objectively justifiable expectation that the agreed retirement age would not be altered except through lawful renegotiation with the union representing them. The impugned circular, however, purports to introduce a reduced retirement age of sixty (60) years without reference to, or preservation of, the CBA provisions. This unilateral departure from a binding contractual and statutory framework defeats the employees’ accrued expectations and does so without consultation, negotiation, or any lawful process of variation. As such, it undermines both procedural fairness and substantive fairness in employment relations. The Supreme Court in Kenya Revenue Authority v Export Trading Company Limited (Petition No. 20 of 2020) [2022] KESC 31 (KLR), held “[52] As can be discerned from these two definitions, legitimate expectation may take many forms. It may take the form of an expectation to succeed
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