High Court dismisses petition to scrap mandatory retirement age

In his petition, Charles Chege Gitau contested the regulations that require employees to retire at 60 years — or 65 for persons with disabilities — arguing they contravene constitutional rights to equality, dignity, and fair labour practices.

He claimed the policy perpetuates stereotypes about older workers’ productivity, fails to guarantee employment for youth, and is inconsistent with retirement exemptions for judges, MPs, and university researchers.

Justice Mugambi, however, ruled that the court had jurisdiction to hear the matter as it challenged the constitutionality of legislation rather than arising from an employer-employee dispute.

He found that the petitioner had failed to prove unlawful discrimination, noting that variations in retirement ages for certain roles were rooted in distinct legal and institutional frameworks.

The judge held that setting a retirement age is a policy decision within the constitutional mandate of the Public Service Commission (PSC) and does not amount to a fundamental right.

He further noted that both the PSC Act and its regulations provide for the retention of exceptional talent on post-retirement contracts where rare skills are required.

In dismissing the case, Justice Mugambi said there was no evidence of unconstitutional discrimination or arbitrary treatment. Given the public interest nature of the matter, he made no order for costs.

The PSC and the Federation of Kenya Employers, who opposed the petition, defended the retirement age policy as being anchored in law and aimed at ensuring fairness, workforce planning, and the promotion of youth employment through affirmative action.

Gitau had sought orders to abolish mandatory retirement and compel employers to allow staff to work beyond the set age limits.