The High Court has struck down a law restricting retired presidents from holding political party office, ruling that leaving the presidency does not strip a former head of state of the constitutional right to participate in Kenya’s political life.
Justice Bahati Mwamuye on Monday, September 21, 2026, declared Section 6 of the Presidential Retirement Benefits Act unconstitutional, null and void.
The provision barred a retired president from holding office in a political party for more than six months after leaving State House.
In a significant ruling, Justice Mwamuye said retirement from the presidency ends the office but does not end the former president’s citizenship or constitutional political rights.
“A retired President remains a citizen. Retirement from office ends the office; it does not end the person,” the judge said.
Court rejects six-month political party restriction
The judge found Section 6 inconsistent with Article 38 of the Constitution, which guarantees citizens political rights, including the right to participate in political activities and to form, join or participate in the activities of political parties.
Justice Mwamuye noted that the law did not prevent a former president from remaining a member of a political party, expressing political opinions, campaigning for a political cause or participating in public political discourse.
Its specific restriction was on holding formal political party office beyond six months after retirement.
The judge questioned whether such a restriction could constitutionally be justified when a former president remained a citizen with political rights.
“Influence is not office. Influence is not executive authority. Influence is not a constitutional disability,” Justice Mwamuye said.
The court’s distinction between political influence and constitutional authority formed a central part of the judgment.
Justice Mwamuye observed that a former president could continue to wield political influence even without occupying a formal party position. As a result, restricting party office did not necessarily eliminate the political influence that lawmakers may have sought to address.
Ruling comes days after another High Court decision
The judgment comes just days after another High Court decision upheld the same restriction under Section 6.
On September 14, Justice Lawrence Mugambi ruled that retired presidents could not hold formal political party office beyond six months after leaving the presidency.
The decision had particular relevance to former President Uhuru Kenyatta, whose political activities have remained a subject of intense debate.
Uhuru’s office subsequently acknowledged the September 14 decision, with the former president indicating that he would begin arrangements to relinquish his chairmanship of the Jubilee Party.
Justice Mwamuye’s ruling has now introduced a different legal position on the constitutionality of the restriction.
Rather than merely interpreting how Section 6 should be applied, the judge declared the provision unconstitutional and prohibited its enforcement.
The case also challenged retired presidents’ benefits
The case before Justice Mwamuye went beyond political party office.
Sheria Mtaani and Shadrack Wambui had challenged Sections 4 and 6 of the Presidential Retirement Benefits Act at the Kiambu Law Courts.
The petitioners argued that Section 4, which allowed Parliament to withhold, reduce or withdraw certain retirement benefits, violated Article 151(3) of the Constitution.
Article 151(3) provides that retirement benefits payable to a former president and former deputy president, together with their facilities and privileges, should not be varied to their disadvantage during their lifetime.
The petitioners argued that Parliament could not use ordinary legislation to impose conditions capable of undermining that constitutional protection.
They also challenged Section 6, arguing that linking retirement benefits or their continued enjoyment to political conduct unlawfully interfered with rights protected under Article 38.
The Senate, National Assembly and Attorney General opposed the petition.
They argued, among other things, that the challenge was premature because Parliament had not actually made a decision to withdraw or reduce any former president’s benefits.
The respondents also maintained that Parliament had constitutional authority to legislate on retirement benefits and that the provisions were subject to constitutional safeguards.
Judge declares parts of benefits law unconstitutional
Justice Mwamuye rejected the argument that the petition was premature.
He held that existing legislation could be challenged on constitutional grounds without waiting for Parliament to take action under the disputed provisions.
On retirement benefits, the judge described Article 151(3) as an “express and absolute protection”.
He ruled that Parliament could not create conditions through ordinary legislation that would ultimately defeat that constitutional guarantee.
The court consequently declared Sections 4(1), 4(2) and 4(3) unconstitutional, null and void.
Section 4(4) was left untouched because the petitioners had not challenged it.
The judge also found the mechanism under Section 4 inconsistent with Articles 40 and 47 and with principles of natural justice.
According to the judgment, the provisions lacked adequate procedural safeguards for a former president facing deprivation of retirement benefits.
Court blocks enforcement of disputed provisions
Justice Mwamuye prohibited the respondents from enforcing Section 6 and from relying on the unconstitutional portions of Section 4 to disadvantage a former president’s protected retirement benefits.
However, he declined to issue certiorari because there was no completed decision before the court that could be quashed.
The judge also ordered each party to bear its own costs, citing the public-interest nature of the case.
The judgment was delivered virtually on September 21.
The ruling therefore leaves Kenya with a significant new judicial pronouncement on the political rights of former presidents, holding that retirement from the country’s highest elective office does not, by itself, create a constitutional disability preventing continued participation in political party activities.
