The High Court in Nairobi has dismissed a constitutional petition seeking to abolish the mandatory retirement age for both public and private sector workers, declaring the age limits lawful and non-discriminatory.
In the case Charles Chege Gitau v State Law Office & Federation of Kenya Employers & Others (HCCHRPET/E085/2024), Justice Lawrence N. Mugambi rejected arguments that the Public Service Commission (PSC) regulations setting the retirement age at 60 years, and 65 for persons with disabilities violate constitutional rights to equality, dignity, and fair labour practices.
Justice Mugambi held that the High Court had jurisdiction since the case challenged the constitutionality of legislation rather than an employer-employee dispute.
He ruled that the petitioner failed to prove discrimination, noting that different retirement ages for judges or MPs were tied to distinct roles and legal frameworks.
Further ruling that Setting a retirement age is a policy decision within the PSC’s constitutional mandate, not a fundamental right.
The judge says both the PSC Act and regulations provide for exceptional retention of skilled retirees on contract.
Finding no evidence of unconstitutional discrimination or arbitrary treatment, the judge dismissed the petition as lacking merit. Given its public interest nature, no order for costs was made.
In his case, Gitau had argued that forcing employees to retire based solely on age amounted to discrimination under Article 27(4) of the Constitution. He claimed that the policy wrongly assumes older workers are unproductive, fails to guarantee job opportunities for youth in practice, and contradicts retirement exemptions for judges, MPs, and university researchers.
He sought declarations outlawing mandatory retirement and orders compelling the PSC and employers to let staff work beyond 60 years.
The PSC and the Federation of Kenya Employers defended the age limits, saying they are grounded in law, policy, and constitutional provisions for affirmative action to promote youth employment. They argued that uniform retirement ages ensure fairness, workforce planning, and opportunities for younger workers, while still allowing for post-retirement contracts where rare skills are needed
