The High Court has declared several provisions of the Presidential Retirement Benefits Act unconstitutional, ruling that they cannot be used to withdraw, reduce, withhold or otherwise disadvantage the retirement benefits of a former President. Justice Bahati Mwamuye, in a judgment delivered on Monday, September 21, 2026, declared Sections 4(1), 4(2), 4(3) and the entirety of Section 6 of the Act unconstitutional, null and void. The decision arose from a constitutional petition filed by Sheria Mtaani and lawyer Shadrack Wambui, following a parliamentary process seeking to review the retirement benefits of a former President.
Court Protects Former President’s Retirement Benefits
The court found that Section 4 of the Act could not override the constitutional protection provided under Article 151(3). The constitutional provision states that retirement benefits payable to a former President, together with the facilities and privileges available to them, cannot be varied to their disadvantage during their lifetime. Section 4 had provided mechanisms through which retirement benefits could be withheld, reduced or withdrawn in specified circumstances.
Justice Mwamuye held that the statutory provisions could not be relied upon to take away or adversely alter benefits protected by the Constitution. The court also found that accrued retirement benefits amount to protected proprietary interests and that any attempt to interfere with them must comply with constitutional safeguards, including protections relating to property rights and fair administrative action.
Restrictions on Retired Presidents’ Political Roles Declared Unconstitutional
The court also struck down Section 6 of the Act in its entirety. The provision had placed restrictions on the political activities of retired Presidents, including limiting their ability to hold office in a political party after leaving the presidency. Justice Mwamuye found that such restrictions were inconsistent with the political rights guaranteed by the Constitution.
The court held that leaving the presidency does not strip a former President of their rights as a citizen. It further found that continued political participation by a retired President does not, by itself, amount to the exercise of executive authority. The restriction was therefore found to improperly interfere with constitutionally protected political participation.
Parliament Still Has Legislative Powers
While declaring the contested provisions unconstitutional, the High Court clarified that the decision did not remove Parliament’s general authority to legislate on matters relating to presidential retirement benefits. The judge stressed that Parliament remains free to legislate within the limits established by the Constitution.
However, lawmakers and other State actors cannot rely on statutory provisions that have already been declared unconstitutional to take action against protected retirement benefits. The court therefore issued prohibition orders preventing the respondents, their agents or anyone acting under their authority from relying on the invalidated sections of Section 4 to withdraw, reduce, withhold or otherwise disadvantageously vary retirement benefits protected by Article 151(3). A separate prohibition order was issued against the enforcement of Section 6.
Court Declines to Quash Parliamentary Motion
Despite declaring the provisions unconstitutional, the court declined to issue an order of certiorari to quash the parliamentary motion that triggered the legal challenge. Justice Mwamuye found that there was no completed decision before the court that could be quashed. The motion dated May 4, 2026 had not resulted in a final decision varying or withdrawing a former President’s retirement benefits.
The court explained that certiorari is used to quash an existing decision or determination and cannot be applied to a decision that has not yet been made. Instead, the court found that prohibition was the appropriate remedy because it operates prospectively to prevent unlawful action.
Court Upholds Separation of Powers
The judge also declined to issue orders that would effectively prevent Parliament from initiating, debating or considering matters relating to presidential retirement benefits. The court said such an order would go beyond what was necessary and could interfere with Parliament’s constitutional mandate. The ruling therefore maintained a distinction between Parliament’s power to legislate and its inability to rely on provisions that conflict with the Constitution.
Section 4(4) Remains in Force
The court clarified that its decision did not invalidate Section 4(4) of the Presidential Retirement Benefits Act. The judge also noted that Section 7, which qualifies the operation of Section 4(4), was not challenged in the proceedings. The court further declined to issue additional remedies under Articles 43 and 50, finding that the declarations and prohibition orders already granted were sufficient to address the constitutional violations established in the case. The ruling effectively places the retirement benefits of former Presidents under the direct protection of Article 151(3) while also affirming that retired Presidents retain constitutional political rights.
