Court declines attempt to abolish mandatory retirement age » Capital News

NAIROBI, Kenya, Aug 13 — The High Court has upheld Kenya’s mandatory retirement age for employees in both the public and private sectors, dismissing a petition that sought to declare the policy unconstitutional.

Justice Lawrence Mugambi delivered the ruling in a case filed by Charles Chege Gitau, who argued that requiring employees to retire at 60 years — or 65 for persons with disabilities — violated constitutional rights to equality, dignity, and fair labour practices.

Gitau claimed the policy reinforced stereotypes about older workers’ productivity, failed to address youth unemployment effectively, and was inconsistent with retirement exemptions for judges, Members of Parliament, and university researchers.

He also challenged the Public Service Commission’s (PSC) authority to extend the policy to the private sector without explicit legal backing.

Legitimate public purpose

The court, however, found that the PSC is empowered under Article 234 of the Constitution and the Public Service Commission Act to set service conditions, including retirement age, provided such policies are reasonable and serve legitimate public purposes.

“The business of setting service conditions, including the retirement age, remains with the employer,” Justice Mugambi said on Wednesday, noting the policy balances opportunities for both older workers and youth seeking employment.

The judge observed that different retirement ages for certain roles — such as judges, MPs, and senior researchers — are based on unique job demands and do not constitute unlawful discrimination.

He further held that retirement age is “a service condition” and “not a fundamental right,” dismissing the petition as “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.”

The court also noted that the law allows post-retirement contracts for individuals with rare skills, provided their performance is not impaired by age.

“The contention that the mandatory retirement age… discriminates because it renders people in that age category jobless is not entirely correct, considering that both the statute and regulations allow for contractual retention in appropriate cases,” Justice Mugambi ruled.

Finding no evidence of discriminatory application, the court reaffirmed the presumption of constitutionality and dismissed the petition without costs, citing its public interest nature.