Court rejects 'employment till death' petition, upholds set retirement age

Retirement plan label. [Courtesy, GettyImages] Employees have no option but to retire upon reaching the mandatory age, after the High Court declined a petition to extend the retirement age beyond 60 years. In his judgment, Justice Lawrence Mugambi ruled that unless one is engaged on a contractual basis after retirement, there is no legal justification to prolong employment based on an individual's desire to continue working and earning. The judge found that the petitioner, Charles Chege, had not demonstrated that the current age limits set by different employers amounted to discrimination. He noted that while civil servants must retire at 60 (or a maximum of 65 for persons with disabilities), lecturers, researchers, and judges retire at 70, while MPs and the President do not have a set retirement age. However, Chege did not prove that these roles were directly comparable. "It should be underscored that equality does not necessarily translate into homogenous treatment, such that the same retirement age fits all. Different categories of employees are governed by distinct principles and job demands, and as long as the differentiation is reasonable, it cannot be considered discriminatory," said Justice Mugambi. Chege had argued that employees should be allowed to continue working beyond 60 years if they still possess the energy and motivation to do so. He suggested that employment should be permitted until death. He sued the Attorney General, the Public Service Commission (PSC), and the Federation of Kenya Employers (FKE), asserting that FKE had adopted the 60 years retirement age for employees without disabilities, while those with disabilities retire at 65 if employed by the government. Chege claimed that this age limit unfairly excludes some employees, without considering their continued competence or capacity to work. "This is pure discrimination based on age, and it contravenes Article 27(4), Article 28 on human dignity, Article 41(1) on the right to fair labour practices, and Article 57(a) which allows older persons to fully participate in society," Chege argued. According to him, Article 27(4) bars the State from discriminating directly or indirectly against any person on the grounds of race, sex, pregnancy, marital status, health status, or social origin. Other protected characteristics include colour, age, disability, religion, conscience, belief, culture, dress, language, or birth. Chege maintained that every Kenyan has the right to earn a living, regardless of age. He contended that the current employment regime leaves a certain class of people jobless without justification. Although the Employment Act does not specifically provide for a retirement age, the Pensions Act does. Section 9 of the Act states that a public officer or government employee may retire any time after the age of 50. However, the recognised retirement age for civil and public servants is 60, and 65 for those with disabilities. Section 20 of the Pensions Act clarifies that it applies only to civil servants. Chege argued that the private sector should be free to set its own retirement age, saying most private firms had simply adopted the government's standard of 60 or 65 years. PSC argued that the case was essentially seeking to allow people to work until death-an idea it rejected as unrealistic, citing the inevitable physical and mental decline that comes with age. Moreover, the PSC warned that allowing employees to work indefinitely would lock out the youth from employment, leaving few job opportunities for incoming graduates.

Court rejects 'employment till death' petition, upholds set retirement age

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Court rejects 'employment till death' petition, upholds set retirement age

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