High Court invalidates law allowing cuts to ex-president benefits

The High Court in Kiambu has struck down key provisions of the Presidential Retirement Benefits Act, ruling that Parliament cannot use them to withdraw, reduce or otherwise disadvantageously vary retirement benefits protected by the Constitution.

Justice Bahati Mwamuye, in a judgment delivered on Monday, September 21, 2026 declared Sections 4(1), 4(2), 4(3) and 6 of the Act unconstitutional and void.

The decision was made in Constitutional and Human Rights Petition E037 of 2026, filed by Sheria Mtaani and lawyer Shadrack Wambui against the Senate, National Assembly, Attorney General and other respondents.

Instead, the court issued prohibition orders barring the respondents and 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 by Article 151(3) of the constitution.

The dispute revolves around Article 151(3) of the constitution, which provides that retirement benefits, facilities and privileges payable to a former president cannot be varied to the former President’s disadvantage during their lifetime.

Section 4 of the Act had empowered the National Assembly, through a resolution supported by at least two-thirds of its members, to deny a retired President or surviving spouse some or all retirement benefits in specified circumstances.

These included gross misconduct, certain criminal convictions and prohibited political party activity.

Justice Mwamuye held that the parliamentary voting threshold could not override an express constitutional protection.

The judge said parliament retains the power to legislate on presidential retirement benefits, but that authority must operate within the limits imposed by the Constitution.

Parliament could not create a statutory mechanism for taking away or reducing benefits that the Constitution protects from adverse variation.

The court further found that the impugned provisions raised concerns under constitutional protections relating to property rights and fair administrative action, particularly where accrued benefits could be adversely affected without adequate procedural safeguards.

Political activity

The judgment also struck down Section 6 of the Act, which restricted a retired President from holding office in a political party beyond six months after leaving the presidency.

Justice Mwamuye distinguished between holding a political party office and exercising political rights as a citizen.

The court found that retirement from the presidency does not extinguish a former President’s citizenship or constitutional rights under Article 38, including the right to participate in political activities.

The ruling therefore removes the statutory restriction on a former President holding political party office beyond the six-month period.

The judgment also makes clear that the former president’s participation in political activities cannot, by itself, be used to trigger withdrawal or reduction of constitutionally protected retirement benefits under the invalidated provisions.

No order against Parliament

The court, however, stopped short of granting an order that would have amounted to direct supervision of Parliament’s proceedings.

Justice Mwamuye declined to issue certiorari, finding that there was no completed decision before the court capable of being quashed.

The judge noted that an alleged parliamentary motion dated May 4, 2026, did not constitute a completed decision varying or extinguishing a former President’s retirement benefits. Certiorari, the court held, can only be used to quash an existing decision or determination.

Instead, the court issued prohibition orders barring the respondents and 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 by Article 151(3.

A separate prohibition order was issued against enforcement or application of Section 6.

The court also declined to prevent Parliament from generally debating or considering legislation concerning presidential retirement benefits, stressing the constitutional principle of separation of powers.

Section 4(4) remains

Justice Mwamuye clarified that Section 4(4) was not declared unconstitutional. The court also noted that Section 7 of the Act had not been challenged in the petition.

The judge declined to issue additional remedies sought under Articles 43 and 50, finding that the declarations and prohibition orders were sufficient to address the constitutional violations established in the case.

The court also directed each party to bear its own costs, citing the public interest nature of the petition.

The ruling follows an earlier legal challenge mounted after a parliamentary process emerged seeking a review of the retirement benefits of a former President. The petitioners had argued that such a process could result in interference with benefits protected by Article 151(3).