Man wants court to scrap mandatory retirement age of 60

Employers and the government might have to go back to the drawing board if a case filed to scrap the 60-year mandatory retirement age will be entertained by the court.

In a legal battle that focuses on alleged discrimination based on age, Charles Chege in his case filed before High Court Judge Lawrence Mugambi wants employees to work beyond 60 years if they still have the zeal and strength to do so.

Chege has sued the Attorney General, the Public Service Commission (PSC) and the Federation of Kenya Employers (FKE). He argues that FKE adopted 60 years for the abled employees while those with disabilities serving in government retire at 65 years.

He says the age limit unfairly isolates some employees without factoring in whether they are still competent and able to continue working.

"This is pure discrimination based on age and thus it goes against Article 27(4), Article 28 on human dignity, Article 41(1) based on the right to fair labour practises, Article 57(a) to fully participate in the affairs of society," argues Chege.

According to the petitioner, Article 27(4) bars the state from discriminating directly or indirectly against any person by virtue of race, sex, pregnancy, marital status, health status, or social origin.

Other factors are colour, age, disability, religion, conscience, belief, culture, dress, language or birth.

In his petition, Chege states that each Kenyan has a right to earn a living irrespective of age. He was of the view that, the current employment arrangement leaves a certain class of people out of work without justification.

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At least three million Kenyans remain unemployed while universities release thousands of graduates into the labour market every year.

The Employment Act does not have a provision for retirement age. However, it is provided for in the Pensions Act. Section 9 provides that a public officer or government employee should retire at any time after attaining the age of 50.

However, the recognised retirement age, especially for civil and public servants, has always been 60 years for the abled and 65 for the disabled.

Section 20 of the Pensions Act provides that the Act only applies to civil servants and all government employees and, therefore, ideally the retirement age should only be applicable to them.

According to Chege, the section leaves it for the private sector to set their own retirement age. However, he states that most private companies have adopted 60 and 65 years of retirement age from the government.

Last year, the government warned relevant authorities against extending the service of public officers who have already attained the retirement age.

Public Service Cabinet Secretary Aisha Jumwa, in a letter to PSC, reminded civil servants that the mandatory age for retirement is 60 and 65 for people living with disabilities.

"It has come to the attention of the ministry responsible for public service that public officers who have attained the mandatory age as provided under the Public Service Commission Act are making numerous appeals to the commission for an unjustified extension."

"The purpose of this letter is to request that all extension review cases be suspended and any existing cases be revoked to enable proper legislations and succession management guidelines to be implemented across the public service," read the letter.

The mandatory retirement age was reviewed by the government from 55 years to 60 years on April 1, 2009. In November 2020, PSC disclosed that it had received requests for an extension of service from 60 to 65 years.

However, the commission turned down the requests. "The commission shall not approve any extension of service for officers retiring from service upon attainment of the mandatory retirement age," said the commission.

The increase of the mandatory retirement age from 55 to 60 years was meant to reduce the government's ballooning pension liability. Chege wants the court to find that retirement age should be determined by other factors but not age.

He wants the court to find that cast-in-stone retirement age is discriminatory and against the right to fair labour rights.

At the same time, Chege wants the court to scrap the retirement age in public and private sectors. He wants the court to order the government and private sector to allow all employees to work unconditionally beyond 60 years.

Justice Mugambu ordered that he serve the court papers and appear before him for mention of the case on March 18, 2024.