The High Court has declared key provisions of the Presidential Retirement Benefits Act unconstitutional, ruling that they cannot be used to withdraw, reduce, withhold or otherwise disadvantageously vary retirement benefits due to a former president.
In a judgment delivered by Justice Bahati Mwamuye, the court declared Sections 4(1), 4(2) and 4(3) of the Presidential Retirement Benefits Act unconstitutional, null and void.
“A declaration be and is hereby issued that Section 4(1), 4(2), and 4(3) of the Presidential Retirement Benefits Act are unconstitutional, null and void,” the judgment states.
The court found that the provisions were inconsistent with Article 151(3) of the Constitution, which protects the retirement benefits, facilities and privileges of a former president from being varied to their disadvantage during the former president’s lifetime.
The case was filed by Sheria Mtaani through lawyer Shadrack Wambui, who challenged the constitutionality of Section 4 of the Act. Nandi Senator Samson Cherargei had on May 4, 2026, moved a motion seeking to review, reduce, or withdraw the state retirement benefits and allowances of former President Uhuru Kenyatta, due to his continued active involvement in leadership roles within the Jubilee Party.
The petitioner argued that the provision was inconsistent with Article 151(3), which provides that the retirement benefits payable to a former President and former Deputy President, together with the facilities and privileges available to them, shall not be varied to their disadvantage during the lifetime of the former President.
The court also declared Section 6 of the Act unconstitutional and void in its entirety, finding that restrictions imposed on the political participation of a retired President were inconsistent with constitutionally protected political rights.
The judgment distinguished between Parliament’s legislative authority and the use of statutory provisions that have been declared unconstitutional.
While the court declined to interfere with Parliament’s general power to debate or legislate on matters concerning presidential retirement benefits, it prohibited reliance on the invalidated provisions to produce consequences prohibited by the Constitution.
“Parliament remains free to legislate within the constitutional field,” the court stated, while emphasising that it cannot exercise statutory power in reliance on a provision that has been declared unconstitutional.
The court further held that the mechanism under Section 4, insofar as it permits the deprivation or adverse variation of an accrued presidential retirement benefit without adequate procedural safeguards, is inconsistent with Articles 40 and 47 of the Constitution and the principles of natural justice.
As a result, the court issued an order of prohibition restraining the respondents, their servants, agents or anyone acting under their authority from relying on the unconstitutional portions of Section 4 to withhold, reduce, withdraw, extinguish or otherwise disadvantageously vary retirement benefits protected under Article 151(3).
A separate prohibition order was issued against the enforcement or application of Section 6.
However, the court declined to grant an order of certiorari, finding that there was no completed decision before it capable of being quashed.
The court said an alleged parliamentary motion dated May 4, 2026 did not amount to a completed decision varying or extinguishing the retirement benefits of a former President.
According to the judgment, certiorari is a remedy used to quash an existing decision or determination and cannot be issued against a decision that has not yet been made.
The court instead found prohibition to be the appropriate remedy because it operates prospectively to prevent unlawful action.
The court also rejected any suggestion that it should supervise parliamentary proceedings, stressing the importance of the separation of powers.
It said a blanket order preventing Parliament from initiating, debating or considering any motion relating to presidential retirement benefits would go beyond what was necessary and could improperly interfere with Parliament’s constitutional mandate.
On Section 4(4), the court clarified that the provision had not been declared unconstitutional. It also noted that Section 7, which qualifies its operation, had not been challenged in the proceedings.