The High Court has rejected a petition for extension of workers' retirement age beyond 60 years, citing lack of evidence to support claims of discrimination and differential treatment of employees, especially public servants.
The petitioner, Mr Charles Chege Gitau, had argued that it was discriminatory to have a category of public officers compelled to retire at 60 and 65 years for a person living with disability while for others, including judges and university lecturers, the retirement age ranged from 65 years.
He was equally aggrieved that Members of National Assembly and the Senate have no prescribed retirement age.
His contention was that the narrative that old age equals to unproductiveness thus necessitating retirement contradicts Public Service Regulations, 2020 which grants special treatment to senior university lecturers and researchers in particular institutions.
But Justice Lawrence Mugambi found that the Petitioner did not demonstrate there was arbitrary differentiation of classes of workers in regard to the application of the mandatory retirement age.
“It should be underscored that equality does not directly translate into homogenous treatment, such as that the same retirement age fits all because different categories of employees are governed by different principles and job demands. As long as the differentiation is reasonable, there would be no discrimination,” said Justice Mugambi.
Though reference was made by the petitioner to the different retirement age of the President and the Judges, the court said no attempt was made to demonstrate that they were in the class of public officers as those whose mandatory retirement age is capped at 60 years.
“It is necessary to underscore that different principles relating to the nature of employment apply and this could impact on the retirement age,” said Mr Mugambi.
Another finding was that the petitioner also failed to demonstrate that the lecturers and researchers, Members of Parliament, Judges and the President were being unreasonably favoured by giving them different retirement ages.
“It is thus apparent that the petitioner merely challenged the mandatory retirement age under regulation 70 of the PSC regulations, 2020 only because he disagrees with it without any iota of evidence on its discriminative application,” he ruled.
He stated that retirement age is not a fundamental right but rather a service condition, which the Public Service Commission (PSC) is empowered to determine.
“This petition is thus an attempt to elevate a service condition to a fundamental right by asking the court to upstage and interfere with the mandate of the employer to set service conditions and leave it to discretion of the employee to determine their retirement age. That is not possible, that is a policy matter that vests with the employer,” said Justice Mugambi.
“As long as the policies made are reasonable and do not violate the human rights, the business of setting service conditions, including setting the retirement age remains with the employer, who as submitted by the third Respondent (Federation of Kenya Employers) is guided by a range of factors such as fiscal dynamics, sectoral needs, special and/or rare skills, workforce planning and so forth,” he ruled.
FKE stated that the private sector employers have the autonomy to establish their own employment terms through their agreements with their employees. To that end, FKE submitted that the petition lacked merit.
