The High Court has dismissed a constitutional petition seeking to abolish the mandatory retirement age for employees in both the public and private sectors, affirming that the existing age limits are lawful, reasonable, and non-discriminatory.
The petition, filed by Charles Chege Gitau, challenged regulations that require employees to retire at 60 years or 65 for persons with disabilities arguing that they infringe on constitutional rights to equality, dignity, and fair labour practices. Gitau contended that the policy perpetuates stereotypes about older workers’ productivity, fails to guarantee employment for the youth, and contradicts exemptions granted to judges, Members of Parliament, and university researchers.
Justice Mugambi ruled that the court had jurisdiction to hear the matter, as it raised constitutional issues rather than being a typical employer-employee dispute. However, he found that the petitioner had failed to prove unlawful discrimination. The judge noted that variations in retirement ages for certain positions are based on distinct legal and institutional frameworks rather than arbitrary decisions.
He further emphasized that setting a retirement age falls within the policy-making mandate of the Public Service Commission (PSC) and does not amount to a fundamental constitutional right. Importantly, Justice Mugambi pointed out that the PSC Act and accompanying regulations allow for post-retirement contracts in cases where rare or exceptional skills are needed, meaning valuable expertise can still be retained when necessary.
In his decision, the judge stated there was no evidence of unconstitutional discrimination or arbitrary treatment, and given the public interest nature of the matter, he made no order for costs.
Both the PSC and the Federation of Kenya Employers, who opposed the petition, defended the mandatory retirement age policy, arguing that it is grounded in law and designed to ensure fairness, proper workforce planning, and the promotion of youth employment through affirmative action.
Gitau had sought court orders to abolish the mandatory retirement age and compel employers to allow staff to work beyond the set limits. With the dismissal of the petition, the current retirement age policy remains firmly in place, maintaining the balance between generational workforce transitions and institutional efficiency.
