MPs on verge of approving judges' Sh5.7bn pension perks

Judges of superior courts, including the Supreme Court, are a step away from a handsome retirement package after a parliamentary committee paved the way for a bill granting the lifetime perks.

The Justice and Legal Affairs Committee of the National Assembly has approved the proposed retirement scheme, which, by the MPs' assessment, offers a taxpayer-funded Sh5.67 billion payout.

The committee has okayed the Judges’ Retirement Benefits Bill, 2025, with amendments after public participation. Judges are currently covered by a colonial-era law and have been pushing for a modern benefits plan.

The government-sponsored bill, which has been under high-level negotiations, significantly enhances pensions for the judges.

Judges are poised for a higher pension calculation based on basic salary and house allowances.

MPs have also approved annual pension raises as dictated by consumer price indices, albeit it is capped at between one per cent and five per cent.

Judges would also be granted a one-off payment for transport upon retirement. The mode is yet to be specified.

Retired judges would also retain diplomatic passports and have access to government lounges at all the country’s airports.

Eligible judges—who have served 10 years, if not on gratuity—would also get a lifetime medical and health insurance under the package.

In approving the bill, the Tharaka MP Gitonga Murugara-led committee said they considered the discrimination judges have suffered over the years.

They argued that the Pensions Act (Cap189) of 1946 is outdated. The committee further held that judges were left out when the government undertook pension reforms under the new constitution.

In 2010, the government changed pensions in the public sector, shifting the schemes from defined benefit to defined contribution schemes.

The reforms were introduced through the Public Service Superannuation Scheme Act, which established a contributory scheme for civil servants, but excluded the judicial service.

Only the pension for the Chief Justice, Deputy Chief Justice were factored in the Retirement Benefits (Deputy Presidents and Designated State Officers) Act of 2015.

“These reforms imply that judges are the only state officers and public officers whose pension is still governed by the Pensions Act,” JLAC said.

MPs described the existing law as ‘outdated’ and inadequate for ensuring a dignified retirement for judicial officers.

“…It is not responsive to the contemporary realities and does not take into account the unique attributes of the role of judges,” the committee said in its report on the bill.

MPs hold that the bill seeks to “provide judges with a pension that is honourable and assures judges have a dignified life after retirement, taking into account their unique contributions to the country”.

The committee also recommended that the five Supreme Court judges (excluding the Chief Justice and Deputy Chief Justice) receive benefits slightly higher than other judges due to their additional administrative duties.

MPs hold that it is of great concern that judges of the apex court are paid pensions under the existing law, restating that the proposed law would ensure ‘equity and proportionality’.

JLAC observed that besides their judicial work, Supreme Court judges have oversight of security, judiciary buildings and infrastructure.

MPs further hold that they also manage the welfare of judges and staff, develop rules of the court, as well as train and handle bar bench relations.

“The constitutional stature and workload of the five other Supreme Court judges should be taken into account in the bill to entitle them to benefits."

As such, MPs want the apex court judges' pension slightly higher than those of judges in other superior courts and below those of the Chief Justice and Deputy Chief Justice.”

The report reveals that the accrued liability for judges' past service under the new plan is Sh5.67 billion, a sharp increase from the Sh4.27 billion liability under the current Pensions Act.

The Sh1.39 billion increase in liability will fund improved benefits for 68 judges expected to retire in the next five years.

It would also cater to 19 who have already retired, costing an additional Sh395 million over the same period. At least six judges retired before the new constitution was promulgated, and are yet to be covered.

Even so, the Salaries and Remuneration Commission (SRC) raised concerns about the fiscal impact and argued that defining "pensionable emoluments" should be its mandate.

However, the committee pushed back, stating that Parliament has the constitutional authority to legislate on pensions.

“Article 94(5) of the Constitution mandates Parliament to legislate on any matter having the force of law in Kenya, including pension,” the committee argued.

For the committee, the SRC had failed to address judges' benefits for years, yet is quick to hand pensions to members of county assemblies.

“SRC is, in principle, not opposed to the enhancement of the pensionable emoluments of judges, and the inclusion of a transport allowance and a medical cover as part of the benefits of a retired judge.”

“The concern expressed by SRC is that only they can set what the three items constitute,” the report reads, with MPs questioning why SRC has taken steps to prescribe the pensionable emoluments of judges.

SRC, called for the deletion of the life insurance clause for new judges, saying it had set up a group-life insurance benefit for them.

It also opposed a post-retirement medical cover, arguing that it was coming up with a broader policy for all state officers, hence the legislation would tie the commission’s hands.

For SRC, judges should either fully align with the government’s defined contribution policy for all new state officers or remain under the old pensions law until the proposed reform is approved.

The Kenya Judges Welfare Association (KJWA), Judicial Service Commission (JSC), and the Attorney General strongly backed the bill.

They argued it was long overdue and one that would strengthen judicial independence by guaranteeing financial security.

Judges also said it was important to recognise the unique nature of the judicial service, citing professional isolation and ethical restrictions that limit their earnings post-retirement.

MPs debated the bill on Wednesday, with a number of members backing the committee’s recommendations.

INSTANT ANALYSIS

After more than 20 years of neglect, the Judiciary is poised for a major victory. The committee's strong endorsement, despite fiscal objections, indicates that there is significant political will to finally address the judges' pensions question. The narrative of moving judges from a colonial-era law to a modern scheme is politically powerful and difficult to oppose.