Court rules withholding ex-presidents' pensions over politics unconstitutional

In a judgment delivered by Justice Bahati Mwamuye the court ruled that Section 4 and Section 6 of the Presidential Retirement Benefits Act are unconstitutional, null and void.

"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," reads the judgment. 

Section 4 permits the withholding, reduction or deprivation of retirement benefits payable to a former President in specified circumstances. 

Section 6 sets out the roles of a Retired President and imposes restrictions upon their holding of office in a political party after leaving the Presidency. 

The court held that the provisions were inconsistent with Article 151(3) of the Constitution, which protects the retirement benefits of a former President.

In the case, Sheria Mtaani, through lawyer Shadrack Wambui, argued that Section 4 of the Presidential Retirement Benefits Act is inconsistent with Article 151(3) of the Constitution on the remuneration and benefits of the President and Deputy President.

The Article 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. 

In its ruling, the court also declared Section 6 of the Act unconstitutional and void in its entirety after finding that restrictions imposed on the political participation of a retired President were inconsistent with constitutionally protected political rights.

"A declaration be and is hereby issued that Section 6 of the Presidential Retirement Benefits Act is unconstitutional and void in its entirety," read the judgment.

The judgment distinguished between Parliament's legislative authority and the use of unconstitutional statutory provisions.

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 emphasizing 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, provided 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 for quashing an existing decision or determination and cannot be used 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 Parliament's proceedings, stressing the importance of separation of powers.

The court 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.

The court further declined to grant additional remedies under Articles 43 and 50, holding that the declarations and prohibitory orders already issued were sufficient to address the constitutional violations established.