Judges’ Retirement Bill dismissed as SRC cites constitutional breach, Sh15 billion fiscal burden

A fresh attempt by the Judicial Service Commission (JSC) to review judges’ retirement benefits has flopped after the Salaries and Remuneration Commission (SRC) dismissed the proposed Judges’ Retirement Benefits Bill, 2025, citing constitutional violations and a potential Sh15 billion fiscal burden.

SRC said the Bill usurps its exclusive mandate to set and review State officers’ pay and warned that implementing it could trigger similar demands across the public sector.

The Commission reaffirmed that judges of the superior courts are State officers as defined under Article 260 of the Constitution and that only SRC has the authority to determine their remuneration, including retirement entitlements.

SRC also cited Article 230(4)(a) and Article 172(1)(b)(i), which limit the JSC’s role to making recommendations, not setting benefits.

“SRC submits that it has neither initiated the review nor set the retirement benefits proposed in the Judges’ Retirement Benefits Bill, 2025. Moreover, the proposals have not been subjected to evaluation against the constitutional principles and factors that SRC is required to apply under Article 230(4)(a) and (5) of the Constitution and the SRC Act,” SRC Acting Secretary Margaret Njoka said in a letter dated July 25 and addressed to National Assembly Clerk Samuel Njoroge.

The Commission warned that enacting the Bill without SRC’s involvement not only breaches constitutional provisions but could also lead to a fiscal ripple effect of Sh15 billion, especially if other State officers demand similar benefits.

“This would exacerbate an already constrained fiscal space and undermine sustainable public compensation management,” Njoka warned.

She further argued that the JSC’s move disregards the institutional balance envisioned in the Constitution and risks weakening oversight mechanisms.

Njoka also raised concerns over the inclusion of new post-retirement perks such as transport and medical coverage, which she said had not been costed or vetted by the SRC.

“She revealed that these post-retirement perks would cost the public Sh1.7 billion in the first year alone,” adding that this could set an unsustainable precedent.

SRC emphasised that the benefits proposed in the Bill had not been measured against the principles of fiscal prudence, transparency, fairness and equity as outlined under Article 230(5) and Section 12 of the SRC Act.

On the legality of the Bill, Njoka argued that it attempts to override SRC’s exclusive role, which she said was upheld by the High Court in Kenya National Commission on Human Rights v Attorney General & Another [2015] KEHC 7634 (KLR).

She added that the current benefits for judges, excluding the Chief Justice and Deputy Chief Justice, are governed by the Pensions Act (Cap. 189), the Pensions (Increase) Act (Cap. 190), and the Widows’ and Children's Pensions Act (Cap. 195).

“SRC observes that the retirement benefits for Judges, as currently provided under the three Acts of Parliament, may only be reviewed by SRC in accordance with its mandate under Article 230(4)(a) of the Constitution and Section 1A of the SRC Act,” Njoka said.

“Such reviews must be conducted taking into full consideration the principles expressly set out under Article 230(5) of the Constitution and Section 12 of the SRC Act, which include fiscal sustainability, transparency and fairness, and equal pay for work of equal value.”

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• Salaries and Remuneration Commission
• Salaries and Remuneration Commission (SRC)
• Judges Retirement Benefits Bill 2025
• retired judges
• Judges Retirement Benefits Bill
• Judges’ Retirement Bill dismissed as SRC cites constitutional breach
• Sh15 billion fiscal burden

SRC went further to cite specific clauses in the Bill that it opposes. One of these defines “pensionable emoluments” to include both basic salary and house allowance. Njoka noted that SRC had earlier directed, through a memo dated October 13, 2023 (Ref: SRC/TS/24/3), that pensionable emoluments should only comprise the monthly basic salary.

“For equity and harmony, the clause should define ‘pensionable emoluments’ as the basic salary payable to a judge as set by the SRC,” she said.

To align with broader government pension reforms, SRC proposed amending Part II of the Bill to introduce a defined contribution scheme. Under this, the employer would contribute 20 per cent of the pensionable emoluments, capped at twice the employee’s mandatory contribution of 10 per cent, with provisions for additional voluntary contributions.

Njoka stressed that all benefits under the proposed scheme must be fully funded from the scheme’s account and legislated accordingly.

SRC also called for the deletion of Clause 27, terming it duplicative of Group Life Insurance provisions already covered under the Retirement Benefits Authority (RBA) Act and scheme rules.

Clause 37 on trustees’ remuneration, the Commission added, should be aligned with the RBA’s Good Governance Practices Guidelines, while Clause 55(a) on post-retirement medical cover should be dropped pending the conclusion of SRC’s policy on such schemes.

Part IV of the Bill, which introduces additional benefits for judges who retired between August 27, 2010, and the date the Bill would take effect, was also criticised. Njoka pointed out that these judges are already covered under existing pension laws and that the proposed benefits create unfair exclusion.

“Part IV excludes judges who retired before August 27, 2010. This may be viewed as discriminatory. Clause 66 should be deleted until SRC finalises its policy on post-retirement medical schemes,” she said.

Clause 66 further proposes giving retired judges and their spouses medical cover similar to serving judges, which Njoka warned would cause inequity, especially since some State officers currently contribute to their own post-retirement medical schemes.

Clause 67(1), which assigns responsibility for paying pensions and related benefits to the Cabinet Secretary, was also flagged. Njoka clarified that while the National Treasury currently handles such functions, a defined contribution scheme, as proposed in Part III of the Bill, should be managed by a Board of Trustees.

SRC urged legislators to subject the Bill to constitutional scrutiny, fiscal analysis and sector-wide equity considerations before proceeding with any amendments to the judges’ benefits framework.