Court strikes down law threatening Uhuru’s retirement benefits

By  Joseph Wangui

Correspondent

Nation Media Group

What you need to know:

• Justice Bahati Mwamuye declared unconstitutional the law restricting retired presidents from holding party office beyond six months after leaving office.

Two High Court judgments delivered this month have taken opposing positions on whether retired presidents can hold political party office, creating a legal split over former Heads of State.

Justice Bahati Mwamuye on Monday declared unconstitutional the law restricting retired presidents from holding party office beyond six months after leaving office. He also struck down provisions allowing Parliament to reduce or withdraw retirement benefits.

The judgment has significant implications for retired President Uhuru Kenyatta, as the court invalidated the statutory provisions that underpinned efforts to review his retirement benefits and restrict his formal political party role at Jubilee Party and Azimio Coalition after leaving State House.

The case followed a May 4, 2026, Senate motion seeking review of former President Uhuru Kenyatta's retirement benefits over his continued political activities.

Sheria Mtaani and lawyer Shadrack Wambui challenged Sections 4 and 6 of the Presidential Retirement Benefits Act, which provided that Parliament could, by a two-thirds vote of the National Assembly, withhold or reduce a retired President's benefits in specified circumstances, while barring a retired President from holding office in a political party for more than six months after leaving office.

The judgment came days after another judge, Justice Lawrence Mugambi, reached the opposite conclusion on Section 6. On September 3, he upheld the restriction following a petition by activists Peter Odhiambo Agoro, Paul Muiruri Kiguathi and Damon Onyango Osawa.

"A reading of Section 6(1) is clear, as was strongly submitted by the respondents and the Interested Parties: it does not forbid the retired President from being a member of a political party; what it restricts is taking up a leadership role in the political party for more than six months after retiring," Justice Mugambi stated, dealing a blow to Mr Kenyatta.

But Justice Mwamuye's decision gives Mr Kenyatta a reprieve from the statutory restriction affecting his formal political role. The judge did not quash the May Senate motion because no completed decision existed to set aside. He instead barred reliance on the invalidated provisions.

The judgment centred on Article 151(3), which says retirement benefits payable to a former President and former Deputy President shall not be varied to their disadvantage during their lifetime. Justice Mwamuye said the protection was direct and could not be altered through ordinary legislation.

"The Constitution did not grant a conditional entitlement with protections that are subject to legislation or parliamentary withdrawal. The answer must, therefore, be in the negative," he said.

He rejected the argument that a two-thirds parliamentary majority could make deprivation lawful.

"A constitutionally prohibited act does not become constitutionally permissible merely because Parliament requires a larger majority before undertaking it," he said.

Section 4 had allowed the National Assembly, by a two-thirds vote, to deny or reduce benefits where a retired President had left office after wilfully violating the Constitution or committing gross misconduct. The judge declared Sections 4(1), 4(2) and 4(3) unconstitutional and void. Section 4(4), dealing with benefits payable to surviving spouses, was not invalidated.

On political rights, Justice Mwamuye said retirement ended presidential office but did not remove citizenship or constitutional political freedoms.

"Influence is not office. Influence is not executive authority. Influence is not a constitutional disability," said Justice Mwamuye.

The judge found Section 6 unconstitutional. It had barred retired presidents from holding political party office beyond six months after leaving State House. The court linked the restriction to Section 4, which attached loss of benefits to prohibited conduct. The finding gives retired President Kenyatta a legal reprieve by blocking the use of the law to reduce his protected retirement benefits or restrict his political participation.

Justice Mugambi's September 3 ruling took the opposite view. He held that Section 6 restricts formal party office, not party membership or other political activity, and found the restriction proportionate. He said the provision was intended to prevent an influential former Head of State from retaining political power after leaving office.

The earlier ruling followed a petition filed in 2023, while the Mwamuye case was filed after the May 4, 2026, parliamentary motion.

The respondents opposed the petition, arguing it was premature because Parliament had not passed a resolution reducing or withdrawing benefits. The court held that Sections 4 and 6 were existing laws whose constitutionality could be tested without a completed parliamentary resolution.

The final orders declared Sections 4(1), 4(2) and 4(3) unconstitutional, while preserving Section 4(4). Section 6 was voided in full. The court barred reliance on the invalidated provisions to reduce protected retirement benefits, and barred enforcement of Section 6.

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