Gitau v Attorney General & 2 others (Petition E085 of 2024) [2025] KEHC 11911 (KLR) (Constitutional and Human Rights) (13 August 2025) (Judgment)
Neutral citation:
[2025] KEHC 11911 (KLR)
Republic of Kenya
Petition E085 of 2024
LN Mugambi, J
August 13, 2025
Between
Charles Chege Gitau
Petitioner
and
Attorney General
1st Respondent
Public Service Commission
2nd Respondent
Federation of Kenya Employers
3rd Respondent
Judgment
Introduction
1.The Petition dated 15th February 2024 is supported by the Petitioner’s affidavit in support of similar date and rejoinder dated 6th March 2024.
2.The Petition challenges the 2nd and 3rd Respondents reliance on Section 79 (1) & (2) and 80 of the Public Service Commission Act as read with Section 70 of the Public Service Commission Regulations, 2020 which he contends discriminates and renders jobless classes of people certain age on the basis of mandatory retirement age.
3.The Petitioner argues that the 2nd and 3rd Respondents’ actions are discriminatory and violate Article 27(4) of the Constitution as well as Articles 28, 41(1), 57(a) of the Constitution and are therefore unconstitutional.
4.The Petitioner thus seeks the following reliefs:a.A declaration that the Respondents jointly and severally violates the Right to equality and freedom from discrimination contrary to Article 27, right to human dignity contrary to Article 28, Article 41 (1) Right to Fair Labour Practices Action, Article 57(a) of the Constitution to fully participate in the affairs of society.b.A declaration that the mandatory retirement age in both private and public sector is unlawful.c.An order of mandamus to compel the 1st and 2nd Respondent to remove the legal retirement limit.d.An order directed at the 2nd and 3rd Respondents compelling the said Respondent to unconditionally allow public and private servants to work beyond the age of 60 years and earn their remuneration thereto.e.Costs of this Petition.f.Any other relief or orders that this Court shall deem just and fit to grant.
Petitioner’s Case
5.The Petitioner argues that by dint of Section 79(1) & (2) and 80 of the Public Service Commission Act as read with Section 70 of the Public Service Commission Regulations, the 2nd Respondent sets the mandatory retirement age as 60 years and 65 years for a person living with disability.
6.It is argued that by setting a mandatory retirement age to settle the employment crisis in Kenya, the 2nd Respondent failed the test set out under Article 24(1)(e) of the Constitution. This is because there are other less restrictive options for jobs creation to the youths instead setting a mandatory retirement limit. Furthermore, he argues that Article 55(c) of the Constitution that provides for affirmative action was not meant to cure one discriminative act while creating another that transgresses Article 27(4) of the Constitution.
7.Additionally, the Petitioner postulates that the narrative that old age equals to unproductiveness thus necessitating retirement contradicts Regulation 70 (1)(c) Public Service Regulations,2020 which grants special treatment to senior university lecturers and researchers in particular institutions. Equally, Article 167(1) of the Constitution which sets the retirement age of judges to 70 years and Article 137 of the Constitution regarding the President of Kenya.
8.The Petitioner also adds that members of the National Assembly and Senate do not have a retirement age. Likewise, it was noted that the 2nd Respondent’s Chairman who was 63 years at the time had carried out his duties in the most prudent manner even causing the 2nd Respondent to receive accolades both locally and internationally. Thus, in sum this argument is adjudged to be unfounded.
9.The Petitioner further alleges that the 3rd Respondent has also relied on the impugned provisions meant for the public sector to force its personnel to also retire at these ages, yet the same lacks rational legal basis.
10.The Petitioner on this premise brings this claim against the impugned provisions and contends that the mandatory retirement age in both the private and public sector is unlawful.
1 st Respondents’ Case
11.In response to the Petitioner’s case, the 1st Respondent filed grounds of opposition dated 30th July 2024 on the basis that:i.This Court lacks jurisdiction to hear and determine this Petition as the Petitioner’s claim can be remedied at the Employment and Labour Relations Court established under Article 162 of the Constitution as read together with Section 12 of the Employment and Labour Relations Court Act. In the case of Samuel Kamau Macharia & Another vs Kenya Commercial Bank Ltd & Another, the Court held that a Courts Jurisdiction flows from either the Constitution or Legislation or both. Thus, a Court of law can only exercise Jurisdiction as conferred by the Constitution or other written Law. It cannot arrogate itself Jurisdiction exceeding that which is conferred upon it by Law.ii.The issue of employees’ retirement upon attainment of 60 years falls within the purview of the Employment and Labour Relations Court as stated in the case of National Social Security Fund Board of Trustees v Kenya Tea Growers Association & 14 others that the Employment and Labour Relations Court has jurisdiction to hear and determine constitutional issues that arise from an employer-employee dispute.iii.The Petition is incompetent and misconceived as the Petitioner has not demonstrated with precision how their constitutional rights have been violated thus falling short of the threshold in Mumo Matemu Vs Trusted Society of Human Rights Alliance and 5 Others (2003) eKLR.iv.The Petition is frivolous, vexatious and an abuse of the Court process.
12.The 1st Respondent indicated that it had a Preliminary Objection however the same is not in the Court file or Court Online Platform (CTS).
2nd Respondent’s Case
13.In response to the Petition, the 2nd Respondent also filed grounds of opposition dated 28th February 2024 on the premise that:i.The 2nd Respondent is a constitutional Commission established under Article 233 of the Constitution with its functions and powers provided for in Article 234 of the Constitution.ii.Pursuant Article 234(2)(j) of the Constitution, Parliament conferred powers to the Commission in the Public Service Commission Act, 2017 and made further provisions with regard to the management of human resource in the public service.iii.Section 79(1)(a) of the Public Service Commission Act provides that a public officer may retire from the public service on attainment of the mandatory retirement age as may be prescribed by regulation.iv.Section 80(1)(a) of the same Act provides that upon attainment of the mandatory retirement age as prescribed in regulations; a public officer shall retire from the service with effect from the date of attaining the mandatory retirement age.v.Section 92 of the Public Service Commission Act gives power to the Commission to make regulations for the better carrying into effect the provisions of the Act. Pursuant to this power, the Commission made the Public Service Commission Regulations, 2020.vi.Regulation 70 of the said Regulations prescribes the mandatory retirement age as 60 years and 65 years for persons with disability.vii.Article 27 of the Constitution is not an absolute right and may be limited by legislation pursuant to the provisions of Article 24 of the Constitution.viii.Article 24 (1) (d) of the Constitution allows the limitation of rights taking into account the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others.ix.Article 55(c) of the Constitution provides that the State shall take measures, including affirmative action programmes, to ensure that the youth access employment.x.Additionally, Article 27(6) of the Constitution provides that the State shall take legislative and other measures, including affirmative action programmes and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination.xi.With regard to employment, while all persons have a right to employment, there is always need to balance the right of employment of the youth and the right of employment of other older persons in the society. It is for this reason that employment in the public service cannot be for life as the State is required by the Constitution to provide employment for the youth through affirmative action programmes and policies including the policy on a specific retirement age in the public service that would give opportunity to the youth to also be employed to serve in the public service.xii.The provisions of Sections 79 and 80 of the Public Service Commission Act and Regulation 70 of the Public Service Commission Regulations are therefore in conformity with the provisions of Articles 24, 27(6) and 55(c) of the Constitution as the State has an obligation to ensure employment opportunities for the youth.xiii.Allowing this Petition would have the effect of allowing persons to work until death in old age which is not humanly possible as the ability of a human being to be productive both physically and mentally diminishes with age.xiv.Additionally, the effect of allowing this Petition would be to lock out the youth from employment as there would be none or limited opportunities for employment if employees were to be allowed to work until death in old age.xv.This Petition is therefore misconceived and lacking in merit and should be dismissed with costs to the 2nd Respondent.
3rd Respondent’s Case
14.The 3rd Respondent’s response to the Petition is not in the Court file or Court Online Platform (CTS) however, this party made a response through its written submissions.
Petitioner’s Submissions
15.The Petitioner filed submissions dated 9th July 2024 and underscored the issue for determination as: whether Section 79(1), Section 80(1) of Public Service Commission Act No 10 of 2017 and Section 70 of Public Service Regulations of 2020 is unconstitutional by dint of Article 27(4) of the Constitution.
16.The Petitioner submitted that the Constitution under Article 27(4) of the Constitution prohibits the State from discriminating directly or indirectly against any person by virtue of age in this matter. In making this determination Counsel submitted that the Court be guided by principle in U.S. vs Butler 297 U.S. 1 (1936).
17.The Petitioner argued that a reading of Article 27(4) of the Constitution against the impugned provisions makes it plain that they are discriminatory on the basis of age. It was argued that the discrimination was not justified by the 2nd Respondent as is required under Article 24 of the Constitution.
18.Reliance was placed in Muslims for Human Rights (MUHURI) & another v Inspector-General of Police & 5 others [2015] eKLR where it was held that where a party invokes Article 24(1) of the Constitution as its solace for violating a right the party is still bound to satisfy the Court on all other elements of Article 24(1) that the justification is reasonable in an open and democratic society.
19.The Petitioner contended that the discrimination was not justified as the 2nd Respondent had not provided any statistics, law or regulations that shows that for every retiring person the position is strictly occupied by a youth. As such, the differentiation on the ground of age by the 2nd Respondent is stressed to be contrary to the legitimate government purpose as seen in Sali vs. National Commissioner of the South African Police Service and Others [2014] ZACC 19.
20.Reiterating his averments in the Petition, the Petitioner argued that the impugned provisions are contradictory to Regulation 70(1) (c) of the Public Service Regulations, 2020, Article 137 and 167(1) of the Constitution.
21.The Petitioner submitted that the Respondents should consider comparative jurisdictions such as United Kingdom, United States of America, Canada among others as a bench mark on the topic of mandatory retirement age. Reliance was placed in Mboya v Attorney General; National Employment Authority (Interested Party) (Petition E335 of 2023) [2024] KEHC 2240 (KLR) where it was held that:
22.Like dependence was placed in Githunguri vs. Republic KLR (1986).
23.The Petitioner in conclusion maintained that the impugned provisions are unconstitutional as violate Article 27(4) of the Constitution.
1 st Respondent’s Submission
24.The 1st Respondent in opposition to the Petition filed submissions dated 30th July 2024 to its Preliminary Objection and set out the single issue for discussion as: whether this Court has jurisdiction on the matter.
25.Counsel relying in Owners of the Motor Vessel “Lillian S’ v. Caltex Oil (Kenya) Ltd [1989] KLR 1 emphasized that jurisdiction is everything as without it a Court has no power to make one more step. In this regard, Counsel argued that this Court lacks jurisdiction to entertain the matter by virtue of Article 162 (2) of the Constitution as read with Section 12 of the Employment and Labour Relations Court Act which grants the Employment and Labour Relations Court jurisdiction to entertain such disputes.
26.Counsel relied in Jane Frances Angalia v Masinde Muliro University of Science and Technology and Others (2010) eKLR where it was observed that Courts of equal status as the High Court have jurisdiction to deal with any constitutional issue in a matter in which they have jurisdiction over.
27.Counsel submitted that the Petitioner challenges the mandatory retirement age which falls under the purview of the Employment and Labour Relations Court. Reliance was placed in Sollo Nzuki vs. Salaries and Remuneration Commission & 2 others (2019) eKLR where the Court held that:
28.Similar dependence was placed in Law Society of Kenya v Federation of Kenya Employers [2021] eKLR.
2 nd Respondent’s Submission
29.The 2nd Respondent’s Counsel, Jacqueline Manani filed submissions dated 18th November 2024 and highlighted the issue for discussion as: whether Sections 79(1) and 80 of the PSC Act and Regulation 70 of the PSC Regulations violate Articles 27(4), 28 and 41(1) of the Constitution.
30.Counsel commenced by stating that every Act of Parliament is presumed constitutional and the burden to prove otherwise lies on the Petitioner. Counsel noted that in determining this question the Court is to be guided by the object, purpose and effect of the impugned provisions.
31.Reliance was placed in Institute of Social Accountability & another v National Assembly & 4 others [2015] KEHC 6975 (KLR) where it was held that:
32.Counsel submitted that the Petitioner had failed to discharge the burden of proving that the impugned provisions are unconstitutional. Counsel contended that the Petitioner had argued that the provisions are discriminatory yet failed to make a comparison against what the discrimination was claimed to be. To support this point, reliance was placed in Gichuru v Package Insurance Brokers Ltd [2021] KESC 12 (KLR) where it was held that:
33.Counsel submitted that the issue in contention is the existence of a mandatory retirement age in both the private and public sector. Counsel pointed out that there was no allegation that there are certain categories of Kenyans who retire later thereby discriminating against another category of Kenyans who retire at 60 and 65 years. As such, Counsel stressed that it was clear that that all Kenyans are treated equally on this subject thus the claim of discrimination is unsubstantiated and further not proved as alleged.
34.Counsel added that the Petitioner had not demonstrated how retirement of all persons at the age of 60 or 65 causes them to be marginalized, ignored or devalued. Counsel posited that on the contrary, it is the Kenyan youth who would be marginalized, ignored or devalued if this Court were to find that there should not be a retirement age.
35.Counsel in like manner submitted that the Petition in alleging violation of Article 28 of the Constitution had failed to demonstrate how the provisions on retirement age violate the right to human dignity. Similar arguments were registered in relation to Article 41(1) of the Constitution. Reliance was placed in Law v Cananda (Ministry of Employment and Immigration), 1999 (1) RCS where it was held that:
36.Counsel noted that prior to acceptance of employment terms either on permanent and pensionable, a person either accepts or declines the terms. As such a person is bound by the contract terms thereafter. Counsel contended that there was nothing unconstitutional about providing certainty by stating the duration of an employment contract and providing a term limit.
37.Counsel equally pointed out that the Constitution also sets a time limit for Judges under Article 167(1) of the Constitution. In this regard, Counsel postulated that should this Court find that the impugned provisions are unconstitutional it would then mean that this Article is also unconstitutional for setting a time limit for retirement.
38.In sum, Counsel submitted that the Petitioner had failed to meet the threshold for a finding that the impugned provisions violate the Constitution and thus Petition lacks merit.
3rd Respondent’s Submissions
39.The 3rd Respondent in opposition to the Petition filed submissions dated 11th March 2025.
40.The 3rd Respondent contended that the set mandatory retirement age by the 2nd Respondent is not discriminatory and is in line with its mandate as empowered under Article 233 of the Constitution and as read with Section 92(2)(f) of the Public Service Commission Act.
41.Furthermore, Counsel submitted that the International Labour Organization (ILO) similarly recognizes the legitimacy of the mandatory retirement ages set by national governments as provided under Paragraph 5 (2) of the Older Workers Recommendation, 1980 (No. 162). This is also echoed under Article 1 (2) of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111).
42.It was noted that while the ILO, advocates against unjust age discrimination, it acknowledges that setting a mandatory retirement age does not inherently constitute discrimination, provided it is justified by legitimate objectives and established through national laws or policies.
43.The 3rd Respondent further submitted that the Courts have held that the retirement age must accord with the national ethos and policies in place that answer to various parameters including micro and macro-economic dynamics, sectoral needs, considerations for individuals with special and rare skills and knowledge, pension scheme administration among others.
44.Dependence was placed in Inter Public Universities Councils Consultative Forum of the Federation of Kenya Employers v Kenya Union of Domestic, Hotels, Education Institutions and Hospital Workers (KUDHEIHA) & 2 others; Ministry of Education & 3 others (Interested Parties) [2021] KEELRC 2298 (KLR) where it was held that:
45.The 3rd Respondent moreover contended that the Petitioner’s allegations on discrimination concerning the mandatory retirement age had not been substantiated thus this burden had not been discharged in line with Section 109 of the Evidence Act.
46.The 3rd Respondent noted that the 2nd Respondent is primarily responsible for overseeing human resource development within the public sector while the 3rd Respondent operates within a different legal framework governed by the Employment Act. In essence, it was noted that the private sector employers have the autonomy to establish their own employment terms through their agreements with their employees. To that end, Counsel submitted that the Petition lacks merit.
Analysis and Determination
47.It is my considered take that the issues that arise for determination in this matter are as follows:i.Whether this Court has jurisdiction to entertain this matter.ii.Whether Sections 79(1) and 80 of the PSC Act and Regulation 70 of the PSC Regulations are unlawful and unconstitutional in view of Articles 27(4), 28 and 41(1) of the Constitution.iii.Whether the Petitioner is entitled to the relief sought.
1st issue- Whether this Court has jurisdiction to entertain this matter
48.The 1st Respondent contended that this Court lacks jurisdiction to hear and determine this matter citing Article 162 (2) of the Constitution as read with Section 12 of the Employment and Labour Relations Court Act which grants the Employment and Labour Relations. The 1st Respondent argued that a dispute on mandatory retirement age falls within the jurisdictional competence of the Employment and Labour Relations Court and given the reasoning in Sollo Nzuki vs. Salaries and Remuneration Commission & 2 others (2019) eKLR .
49.The Supreme Court In the Matter of the Interim Independent Electoral Commission [2011] KESC 1(KLR) guided as follows:
50.In the same way the Court of Appeal speaking to this issue in Kakuta Maimai Hamisi v Peris Pesi Tobiko & 2 others [2013] KEHC 5855 (KLR) opined as follows:
51.The jurisdiction of the special courts is provided for under Article 162(2)(b) of the Constitution which states as follows:
1.The superior courts are the Supreme Court, the Court of Appeal, the High Court and the courts mentioned in clause (2).
2.Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to—a.employment and labour relations; andb.the environment and the use and occupation of, and title to, land.
3.Parliament shall determine the jurisdiction and functions of the courts contemplated in clause (2).
52.To give effect to Article 162 (3); Parliament enacted the Employment and Labour Relations Act in which section 12 defines the jurisdiction of the Court as follows:
1.The Court shall have exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with Article 162(2) of the Constitution and the provisions of this Act or any other written law which extends jurisdiction to the Court relating to employment and labour relations including—a.disputes relating to or arising out of employment between an employer and an employee;b.disputes between an employer and a trade union;c.disputes between an employers’ organisation and a trade union’s organisation;d.disputes between trade unions;e.disputes between employer organisations;f.disputes between an employers’ organisation and a trade union;g.disputes between a trade union and a member thereof;h.disputes between an employer’s organisation or a federation and a member thereof;i.disputes concerning the registration and election of trade union officials; andj.disputes relating to the registration and enforcement of collective agreements.
53.The Court in Sollo Nzuki (supra) rendered itself thus:
54.Additionally, the Court of Appeal in Chimweli Jangaa Mangale & 3 others v Hamisi Mohamed Mwawasaa & 15 others [2016] KECA 413 (KLR) held as follows:
55.Correspondingly, the Court of Appeal in Public Service Commission & 4 others v Cheruiyot & 20 others [2022] KECA 15 (KLR) stated as follows:
56.The jurisdiction of the High Court under Article 165(3) (d) (i) includes, among others, the determination of ‘the question whether any law is inconsistent with or in contravention of this Constitution.’ The dispute before this Court essentially challenges the constitutionality of Statutory of Sections 70 and 80 of the Public Service Commission Act and Regulation 70 of the PSC regulations. This challenge is not founded on an employer/employee relationship as between the Petitioner and the Respondents as none was even shown to exist. Manifestly therefore, this is cannot be a matter falling within the jurisdictional sphere of the Employment and Labour Relations Court contemplated in Article 162 (2) of which the jurisdiction of this Court is specifically barred by dint of Article 165 (5) (b) of the Constitution.
57.The contention by the 1st Respondent that this Court lacks jurisdiction therefore fails.
2nd issue- Whether Sections 79(1) and 80 of the PSC Act and Regulation 70 of the PSC Regulations are unlawful and unconstitutional in view of Articles 27(4), 28 and 41(1) of the Constitution.
58.A determination of this issue will involve interpretation of the Constitution and therefore the applicable constitutional interpretations principles will come into play. The Court in Katiba Institute & 8 others v Director of Public Prosecutions & 2 others; Ayika [2024] KEHC 2890 (KLR) summarized the applicable principles as follows:
59.In like manner, the Court in Gikonyo & another v National Assembly of Kenya & 4 others; Council of Governors & 3 others (Interested Parties) [2024] KEHC 10886 (KLR) echoed as follows:
60.Furthermore, in Institute of Social Accountability & another (supra) the Court observed that:
61.The gist of this Petition are the provisions of the law that the Petition is challenging on the basis that they fix the mandatory retirement age thus locking from employment critical mass of the population in discriminative manner on account of age which is a violation of Article 27 (4) of the Constitution. It would thus be germane to first set out those provisions that the Petitioner has isolated and assailed through the instant Petition.
62.Section 79 (1) of the Public Service Commission Act, Cap 185 stipulates the grounds for retirement and entitlement to pensions benefits as follows:‘(1)A public officer may retire from the public service—a.on attainment of the mandatory retirement age as may be prescribed by regulation;b.on attainment of fifty years;c.on medical grounds;d.where a public office is abolished;e.in accordance with a special retirement scheme agreed between a public officer and the relevant lawful authority; orf.by voluntary retirement’
63.Section 80 provides for retirement on the basis of age, and states as follows: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; andb.the Commission or other appointing authority shall not extend the service of such retired public officer beyond the mandatory retirement age.
2.Despite subsection (1)(b), the Commission or other appointing authority may engage the public officer for service after the retirement upon such terms of contract as may be agreed if —a.the public officer possesses rare knowledge, skills and competencies for the time being required in the service;b.the retired officer is willing to be engaged on contract; andc.the retired public officer's performance shall not in any way be impaired by age.
64.Regulation 70 of the Public Service Commission Regulations, 2020 provides:
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— Retirement on age grounds.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.
3.A public officer shall be considered for retirement as a person with disability if the officer—(a)has a disability of a permanent nature that can be perceived by significant sectors of the community and the disability has a substantial impact on the ability of the officer to carry out ordinary day to day activities;(b)has been registered in the public body’s human resource database as a person with disability for at least three years before the date of retirement: Provided that the Commission may consider cases of disability that occur less than three years before the date of retirement; and(c)is registered by the National Council for Persons with Disabilities and has a tax exemption certificate from the Kenya Revenue Authority as a person with disability: Provided that registration by the Council or possession of a tax exemption certificate shall not be considered as automatic evidence of disability. Kenya Subsidiary Legislation, 2020 43 (3) Where there is doubt as to the disability of a public officer, the Commission shall seek a second medical assessment from a panel consisting of a representative of the Commission and three eminent doctors appointed by the Director-General of Health and the second medical assessment shall supersede any other assessment.
(4)A person shall not be retained in the public service on account of disability beyond the mandatory retirement age without the approval of the Commission.(5)Subject to the Constitution, the Retirement Benefits Act, 1997, the rules of a retirement benefits scheme or a specific government policy, where an officer attains the mandatory retirement age while undergoing disciplinary proceedings, the officer shall retire with the applicable pension benefits. No. 3 of 1997.(6)Subject to section 80 (2) of the Act, in determining whether to engage an officer after attainment of retirement age, the Commission shall determine and document the rare knowledge, skills or competencies that the officer possesses.(7)In this regulation—a.“rare knowledge, skills and competencies” means knowledge, skills and competencies that are scarce, unique and not readily available in the job market.; and(b)“disability” means a permanent physical or other impairment or condition that has, or is perceived by significant sectors of the community to have, a substantial or long-term effect on an individual’s ability to carry out ordinary day to day activities.
65.It should be underscored that Article 234 of the Constitution sets out the function and powers of the Public Service Commission which at Article 234 (2) (g) includes to ‘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.’
66.The Petitioner contended that Article 27(4) of the Constitution prohibits the State from discriminating directly or indirectly against any person on grounds of age insisting that a reading of Article 27(4) of the Constitution against the above cited provision would reveal obvious discrimination on the basis of age that the 2nd Respondent does not even justify as envisaged under Article 24 of the Constitution.
67.The petitioner contended that the Respondent has not provided any statistics, law or regulations to prop its claim that the object is intended to ensure youth also get an opportunity to work stating that there was no evidence to show that for every retiring person, the position is strictly occupied by a youth. It was further argued for the Petitioner that the retirements ages that are applied for certain categories like lecturers and researchers as indicated in Regulation 70(1) (c) of the Public Service Regulations, 2020; the President under Article 137 of the Constitution or the Judges who retire at seventy years under Article 167(1) of the Constitution are different thus the argument that the retirement age is pegged on productivity is indefensible. The Petitioner equally pointed out that Members of National Assembly and the Senate have no prescribed retirement age.
68.Countering the position taken by the Petitioner, the 2nd Respondent argued that the Petitioner had merely alleged discrimination but not demonstrated its existence in comparison on the categories of people involved. Further, that matter in question was an issue under the contract of employment which is made manifest at the time of employment hence is not a constitutional matter. The 3rd Respondent on the other hand argued this is a matter governed by policy and is determined by range of factors which include micro and macro economic dynamics, sectoral needs, considerations for individual with special and rare skills and knowledge among many factors.
69.I will first deal with the question of discrimination. It is important to first understands what discrimination entails.
70.In Peter K. Waweru -Vs-Republic (2006) eKLR the Court referring to Black’s Law Dictionary explained:
71.Further, in Jacqueline Okeyo Manani & 5 others v Attorney General & another [2018] eKLR the Court stated:
72.In the instant case, the Petitioner did not demonstrate that the there was arbitrary differentiation of classes of persons covered under Section 79 (1) and 80 of the Public Service Commission Act as read with Section 70 (1) in regard to the application of the mandatory retirement age. Indeed, though reference was made to the different retirement age of the President and the Judges, no attempt was made to demonstrate that these categories of employees are in that category or class as those whose mandatory age of 60 years. In any, it is necessary to underscore that different principles relating to the nature of employment apply and this could impact on the retirement age. The Petitioner in alleging discrimination in respect of persons targeted under the mandatory retirement age of 60 and 65 under regulation 70 did not bother to demonstrate that the lecturers and researchers, Members of Parliament, Judges and the President are in similar category as the employees whose mandatory age is set under regulation 70 of Public Service Commission Regulations, 2020 and thus are being unreasonably favoured by giving them different retirement ages. It should be underscored that equality does not directly translate into homogenous treatment, such as that the same retirement age fits all because different categories of employees are governed by different principles and job demands and as long as the differentiation is reasonable, there would no discrimination. Consequently, unless it could be demonstrated that there is no rational basis for the application of the different age thresholds, the burden of which lies on the one who alleges, this Court would have no basis for declaring the regulation unconstitutional as every law is presumed constitutional until the contrary is proved. The responsibility to demonstrate the unconstitutionality thus fell on the Petitioner. He did not discharge that burden. It is thus apparent that the Petitioner merely challenged the mandatory retirement age under regulation 70 of the PSC regulations, 2020 only because he disagrees with it without any iota of evidence on its discriminative application.
73.I need to emphasise that under Article 234 (2) (g) of the Constitution as read with Section 92 (1) & 2 of the Public Service Commission Act gives the mandate to set the conditions of service to to the 2nd Respondent. Indeed, Section 92 (2) (f) of the PSC Act specifically gives the 2nd Respondent to give guidelines on the retirement ages.
74.In Alliance v President of South Africa and Others (CCT 122/11) [2012] ZACC 24; 2012 (12) BCLR 1297 (CC); 2013 (1) SA 248 (CC) the Court cautioned against the rush to invalidate laws on rationality grounds except in the clearest of cases. It stated:
75.Retirement age is a 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. This Petition is thus a vain attempt to elevate a service condition to a fundamental right by asking the Court to upstage and interfere with the mandate of the employer to set service conditions and leave it to discretion of the employee to determine their retirement age. That is not possible, that is a policy matter that vests with the employer and as long as the policies made are reasonable and do not violate the human rights, the business of setting service conditions, including setting the retirement age remains with the employer who as submitted by the 3rd Respondent is guided by a range of factors such as fiscal dynamics, sectoral needs, special and/or rare skills, workforce planning and so forth.
76.The Petitioner in urging this Court to find that there is discriminatory application relied on a passage in the case of Mboya v Attorney General; National Employment Authority (Interested Party) (Petition E335 of 2023) [2024] KEHC 2240 (KLR) where this Court held thus:
77.The above case is however distinguishable from the instant one. The present case deals with a service condition relating to a person who already has been in employment and is required to exit pursuant to the terms and conditions of service of that employment. In the previous case, the legal provision in question had disallowed a category of people, that is persons above 35 the age of years from seeking employment with the government employment agency. Consequently, while one is a service condition for persons who have been working, this one did not even create an opportunity for them to seek that employment in the first place and all because of age.
78.Secondly, the contention that the mandatory retirement age under regulation 70 (1) & (2) of the Public Service Regulations, 2020 discriminates because it renders people in that age category jobless and/ unemployable is not entirely considering that both the Statute and the Regulations have made provisions for instances when such persons may be retained despite reaching the retirement age on contractual terms in appropriate cases.Section 80 (2) provides:“Despite subsection (1)(b), the Commission or other appointing authority may engage the public officer for service after the retirement upon such terms of contract as may be agreed if —a.the public officer possesses rare knowledge, skills and competencies for the time being required in the service;b.the retired officer is willing to be engaged on contract; andc.the retired public officer's performance shall not in any way be impaired by age.
79.Having regard to the foregoing, this Court finds that this Petition lacks merit.
80.The inescapable conclusion is that it is hereby dismissed with not orders as to costs being a public interest litigation.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 13TH DAY OF AUGUST, 2025.……………………………………..L N MUGAMBIJUDGE