Report On Consideration Of The Judges' Retirement Benefits Bill (na Bill No. 27 Of 2025)

THENATIONALASSEMBLY THIRTEENTHPARLIAMENT-FOURTHSESSION-2025

DIRECTORATEOFDEPARTMENTALCOMMITTEES

DEPARTMENTALCOMMITTEEONJUSTICEANDLEGALAFFAIRS

REPORT ON:

THECONSIDERATION OF THE JUDGES'RETIREMENT BENEFITS BILL, 2025 (NATIONAL ASSEMBLY BILL NO.27 OF 2025)

NOVEMBER2025

CLERK'SCHAMBERS DIRECTORATEOFDEPARTMENTALCOMMITTEES PARLIAMENTBUILDINGS NAIROBI

TABLEOFCONTENTS

| Table of Content... | Table of Content... | Table of Content... | |----------------------------------------------------------------------------------------------|----------------------------------------------------------------------------------------------|----------------------------------------------------------------------------------------------| | ListofAbbreviationsandAcronyms. | ListofAbbreviationsandAcronyms. | ListofAbbreviationsandAcronyms. | | List of Annexures. | List of Annexures. | List of Annexures. | | Chairperson's Foreword | Chairperson's Foreword | Chairperson's Foreword | | CHAPTER ONE | CHAPTER ONE | CHAPTER ONE | | Preface. | Preface. | Preface. | | 1. 1 | Establishmentofthe Committee | | | 1.2 | Mandate of the Committee | | | 1.3 | Committee Membership | | | 1.4 | CommitteeSecretariat | | | CHAPTER TWO | CHAPTER TWO | | | 2 Overview of the Judges' Retirement Benefits Bill(National Assembly Bill No. 27 of 2025)... | 2 Overview of the Judges' Retirement Benefits Bill(National Assembly Bill No. 27 of 2025)... | 2 Overview of the Judges' Retirement Benefits Bill(National Assembly Bill No. 27 of 2025)... | | 2.1 Background | 2.1 Background | 2.1 Background | | Public Participation and Stakeholder Engagement on the Bill | Public Participation and Stakeholder Engagement on the Bill | Public Participation and Stakeholder Engagement on the Bill | | 3.1 LegalFrameworkonPublicParticipation... 9 | 3.1 LegalFrameworkonPublicParticipation... 9 | 3.1 LegalFrameworkonPublicParticipation... 9 | | 3.2 Memoranda Received on the Bill. 3.2.1 Submissions in support of the Bill. 10 | 3.2 Memoranda Received on the Bill. 3.2.1 Submissions in support of the Bill. 10 | 3.2 Memoranda Received on the Bill. 3.2.1 Submissions in support of the Bill. 10 | | 3.2.2 SubmissionsonProposedAmendments CHAPTERFOUR 24 | 3.2.2 SubmissionsonProposedAmendments CHAPTERFOUR 24 | 3.2.2 SubmissionsonProposedAmendments CHAPTERFOUR 24 | | 4 CommitteeObservations. 24 | 4 CommitteeObservations. 24 | 4 CommitteeObservations. 24 | | CHAPTERFIVE. | CHAPTERFIVE. | CHAPTERFIVE. | | 26 | 26 | 26 | | CommitteeRecommendations 26 | CommitteeRecommendations 26 | CommitteeRecommendations 26 |

LISTOFABBREVIATIONSANDACRONYMS

AG

Office of theAttorney General andDepartment of Justice

CBS

Chief of the Order of the BurningSpear

EBS

Elder of theOrder of theBurningSpear

EGH

ElderoftheOrderoftheGoldenHeart

FORD

Forumfor theRestorationof Democracy

ICPAK

InstituteofCertifiedPublicAccountantsofKenya

JSC

JudicialServiceCommission

KJWA

Kenya JudgesWelfareAssociation

KLRC

Kenya Law Reform Commission

KNCHR

KenyaNational CommissiononHumanRights

KUPPET

KenyaUnionofPostPrimaryEducationTeachers

LLM

Masterof LawsDegree

LSK

Law Society of Kenya

MCCP

Maendeleo Chap Chap Party

MP

MemberofParliament

ODM

OrangeDemocraticMovement

OGW

Orderof theGrandWarrior

PSC

PublicServiceCommission

SRC

SalariesandRemunerationCommission

UDA

UnitedDemocraticAlliance

UDM

United DemocraticMovement

WDM

WiperDemocraticMovement

LISTOFANNEXURES

Annexure l: Adoption Schedule

Annexure 2:Minutes

Annexure 3:Judges' Retirement Benefits Bill, 2025

Annexure4: Advertisementinvitingthepublictosubmitmemorandaon theBill

Annexure 5:Letter from the Clerk of the National Assembly inviting stakeholders to

attendthepublicparticipationforum

Annexure6:MemorandabyStakeholders

CHAIRPERSON'SFOREWORD

This Report contains the proceedings of the Departmental Committee on Justice and Legal Affairsonits considerationof theJudges'RetirementBenefitsBill(National AssemblyBill No. 27of 2025)whichwaspublishedon11th June 2025.The Billwas read a FirstTime in the Houseon26thJune2025andcommittedto theCommittee tofacilitatepublicparticipation.

courtsandinturnrealizetheprinciplesoftheindependence oftheJudiciaryin exercising judicial authority.

In compliance withArticle Il8(b)of the ConstitutionandStanding Order 127(3),the Committeeplaced an advertisementintheprint media on27h June2025inviting thepublic tosubmitmemorandabywayofwrittenstatementsontheBill.Inaddition,theCommittee videletterreferencedNA/DDC/jLAC/2025/074dated30thJuly2025invitedkeystakeholders By thecloseofthesubmissiondeadline,theCommitteehadreceivedviewsfrom twenty(20) submissions.

The Kenya Judges Welfare Association (KJWA), Judicial Service Commission (JSC), the Judges' RetirementBenefitsBill Taskforce,OfficeoftheAttorneyGeneralandDepartmentof Justice (AG), Law Society of Kenya (LSK), Kenya Law Reform Commission (KLRC), Kenya National Commission on Human Rights (KNCHR), The National Treasury, Ofice of the Controller of Budget, Public Service Commission (PSC), Salaries and Remuneration Commission (SRC), Kenya Union of Post Primary Education Teachers (KUPPET),Institute of Certified Public Accountants of Kenya (ICPAK), Kituo cha Sheria, Uraia Trust, SeeTahTee Studio, Francis Sitati, Naomi Sitati, Wendy Faith Muganda LLM and John Angolo gave their views on the Bill whichtheCommitteeconsideredinthepreparationofthisReport.

is currentlyprescribedbythePensionAct(Cap.I89)whichcame intooperationonI*January 1946. In 2010, the government undertookpensionreforms in the public sector shifting the pensionschemesinthepublicsectorfromdefinedbenefittodefinedcontributionschemes. The pensionreforms were introduced through thePublicService SuperannuationScheme Act (Cap.I89A) which established the contributory public service superannuation scheme for providingretirementbenefitstopersonsinthepublicservice excluding thejudicial service. Additionally,the pension for the Chief Justice and the Deputy Chief Justice are regulated by the Retirement Benefits (Deputy President and Designated State Officers) Act (Cap. I97B). The implication of these reforms isthat judges are the onlyState officers andpublic officers whosepensionisstillgovernedbythePensionsActwhichisnotresponsivetothe contemporaryrealitiesanddoesnottakeintoaccounttheuniqueattributesoftheroleof judges. Therefore, the Bill seeks to provide judges with a pension that is honourable and assures judges haveadignifiedlife afterretirement takingintoaccount theirunique contributionstothecountry.

The Committee is grateful to the Offices of the Speaker and Clerk of the National Assembly for thelogistical and technical support accordedtoit duringits consideration of theBill.The Committee further wishes to thank the KJWA,JSC,the Judges'Retirement Benefits Bill Taskforce,AG,LSK,KLRC,KNCHR,The National Treasury, Office of the Controller of Budget,PSC,SRC,KUPPET,ICPAK,KituochaSheria,UraiaTrust,SeeTahTeeStudio,Francis Sitati, Naomi Sitati, Wendy Faith Muganda LLM and John Angolo for submitting memoranda se n u o de ssxa o um l r Committee andtheCommitteeSecretariatwhomadeusefulcontributions towards the preparation and production of this report.

On behalf of the Departmental Committee on Justice and Legal Affairs and pursuant to the House theReportof theCommittee onitsConsideration of theJudges'RetirementBenefits Bill(NationalAssemblyBillNo.27of2025).

It is my pleasure to report that the Committee has considered the Judges' Retirement Benefits Bill (National Assembly Bill No. 27 of 2025) and has the honour to back to the National Assembly with the recommendation that the House considers and passes the Bill at Second Reading, Committee Stage and Third Reading with appropriate amendments to incorporate the viewsofthepublicandstakeholders,theCommitteeandMembers.

Hon.Murugara George Gitonga, MP Chairperson,Departmental CommitteeonJusticeandLegal Affairs

IPREFACE

I.IEstablishmentoftheCommittee

1. The Departmental Committee on Justice and Legal Affairs is one of twenty departmental committeesof theNational Assembly established underStandingOrder 2I6whosemandate pursuant to theStandingOrder216(5) is asfollows: 2. i.Toinvestigate,inquire into,andreport on all matters relating to the mandate,management, activities,administration,operationsandestimatesoftheassignedministriesanddepartments; 3. To study the programme and policy objectives of ministries and departments and the effectivenessoftheimplementation;

• ii. To,on a quarterly basis,monitor and report on the implementation of the national budget in respectofitsmandate;
• iv. Tostudy andreviewall legislationreferred toit;
• V. Tostudy,assess andanalyse therelativesuccessoftheministries anddepartmentsasmeasured bytheresultsobtainedascomparedwiththeirstatedobjectives;
• VI. To investigate and inquire into all mattersrelating to the assignedministries and departments as theymay deemnecessary,and as may bereferred to themby theHouse;
• vil. Tovet andreportonall appointmentswheretheConstitutionor anylawrequirestheNational Assembly toapprove,exceptthoseunderStandingOrder204(CommitteeonAppointments);
• vili. Toexamine treaties,agreements and conventions;
• ix. Tomake reports and recommendations to the House as often as possible,including recommendationsofproposedlegislation;
• X. ToconsiderreportsofCommissions and IndependentOfficessubmitted to theHousepursuant to theprovisionsofArticle254oftheConstitution;and

12. xi.To examine any questions raised by Members on a matter within its mandate.

1.2MandateoftheCommittee

• 2.In accordance with the Second Schedule of the Standing Orders, the Committee is mandated to consider:
• a) The Judiciary;
• b) Tribunals;
• Access to Justice;
• P Publicprosecutions;
• e Ethics, Integrity and Anti-corruption;
• f Correctional services;
• g Community service orders and witness protection;
• h Constitutional Affairs;
• Sovereign immunity;
• i) Electionsincludingreferenda;
• k Human rights;
• 1 Politicalparties;and
• m) TheState LawOfficeincludinginsolvency,lawreform,public trusteeship,marriages and legal education.
• 3.In executing its mandate, the Committee oversights the following Ministries, Departments and Agencies:
• a) The Judiciary;

CHAPTERONE

• b) JudicialServiceCommission;

2. State Departmentfor Correctional Services; 3. P StateLawOffice andDepartmentofJustice; 4. e StateDepartmentforJustice,HumanRights and Constitutional Affairs; 5. f Office of theDirector of PublicProsecutions;

• g) Ethics and Anti-Corruption Commission;
• h) IndependentElectoralandBoundariesCommission;
• i) Commission on Administrative Justice;

9. j) Officeof theRegistrarofPolitical Parties;

• k) WitnessProtectionAgency;
• 1) Kenya National Commission on Human Rights;
• m) Kenya Law Reform Commission; and
• n) Council of Legal Education.

1.3 Committee Membership

4. The Committee was reconstituted by the House on 5th March 2025 and comprises the following Members:

Chairperson

Hon. Murugara George Gitonga, CBS, MP Tharaka Constituency UDA Party

Vice-Chairperson

Hon.MutuseEckomasMwengi,OGW,MP Kibwezi West Constituency MCCP Party

Hon.Gladys Boss,MGH,MP Uasin Gishu Constituency UDA Party

Hon. Onyiego Silvanus Osoro, CBS, MP South Mugirango Constituency UDA Party

Hon.Wetang'ulaTimothyWanyoyi,CBS,MP Westlands Constituency ODM Party

Hon.Muchira Michael Mwangi, MP Ol Jorok Constituency UDA Party

Hon.MakaliJohn Okwisia,MP Kanduyi Constituency FORD-Kenya

Hon.Aden Daud,EBS,MP WajirEast Constituency Jubilee Party

Hon.CPASulekaHulbaleHarun,MP NominatedMember UDM Party Hon.Maalim Farah,EGH,MP Dadaab Constituency WDM-Kenya Hon.FrancisKajwang'Tom Joseph,CBS,MP Ruaraka Constituency ODM Party Hon.(Dr.) Otiende Amollo, SC,EBS, MP Rarieda Constituency ODM Party Hon.Muchangi Karemba,CBS MP Runyenjes Constituency UDA Party Hon.MogakaStephen M.,MP West Mugirango Constituency Jubilee Party Hon.SiyadAminaUdgoon,MP Garissa County (CWR) Jubilee Party

1.4 CommitteeSecretariat

• 5.The Committee iswell-resourced and facilitated by the following staff:

Mr.AhmedSalimAbdalla ClerkAssistantI/HeadofSecretariat

Mr. Ronald Walala Senior Legal Counsel

Mr.Abdikafar Abdi ClerkAssistantIII

Ms. Jael Ayiego ClerkAssistant IIl

Mr. Isaac Nabiswa Legal Counsel Il

Mr. Omar Abdirahim Fiscal AnalystI

Ms. Vivienne Ogega ResearchOfficerIll

Mr. John Nduaci Serjeant-At-Arms

Mr.MeldrickK.Sakani Audio Assistant

Ms. Mary Kamande PublicCommunicationsOfficerIll

Mr. Calvin Karung'o Media Relations Officer Ill

Mr. Silas Opanga Hansard ReporterIll

CHAPTERTWO

2 OVERVIEW OF THE JUDGES'RETIREMENT BENEFITS BILL(NATIONAL ASSEMBLYBILLNO.27OF2025)

2.1Background

6. The Bill, sponsored by the Hon. Kimani lchung'wah, EGH, MP, was published on IIth June 2025 and read a First Time in the House on 26rh June 2025 (Annexure 3). It was thereafter committed to the Committee in line with Standing Order I27(l) of the National Assembly Standing Orders.

2.2Summary of Legal Provisions

• 7.TheBillseekstoprovidefor thepensionandotherretirementbenefitstojudgesofsuperior courts.TheBillseekstorealize theprinciplesoftheindependenceoftheJudiciaryin exercising judicial authority.

8. In particular:

• (a) Clause3and4provides that theprovisions,once enacted,shall applyto:
• (i)ajudgewhoisinoffice atthecommencementof theActto theextentprovided in Part Il;
• (ii)ajudgewhois appointed tooffice after thecommencementof theActtothe extentprovidedunderPartlll;and
• (i)ajudgewhoretiredfromofficein accordancewithArticle167oftheConstitution atanytimeafter27thAugust2020butbeforethebutbeforecommencementof theActtotheextentspecified inPartIV.
• (b) Clause 5 provides for the right to pension or gratuity to a judge. Pension shall vest in a judge who has completed ten years of pensionable service while service gratuity shall bepaid toa judgewhohasservedfor aperiodof lessthantenyears.
• (c) s n a ls d s a s e as thatpriorpublicservice by a judge shall formpart of the qualifying servicewhere there is no break in service after appointment to public office.
• (P) Clause8provides that,withintwelvemonths after thecommencementof theAct,a judgemayelecttotransferall accruedpensionunderthejudicialservicepensionorany othercontributorypensionschemein thepublicserviceorretain thepensionunder thescheme inwhichthepension accrued.
• (e) Clause 9provides that thepension,gratuity andbenefits shallbe a charge on the Consolidated Fund.Article206(2)(c)states that money may be withdrawn from the Consolidated Fund as a charge against the Fund authorised by the Constitution or an ActofParliament.
• (f) Clause I0 provides for the computation of the judge's pension. A judge shall be entitled to an annual pension equal to one-four-hundred-and-eightieth of the judge's pensionable emoluments(basicsalaryandhouseallowance)foreachcompletedmonthofservice.

• (g) Clause II allows a judge entitled to pension to commute the payment of the pension and that once this option is exercised,it shall be in writing and irrevocable.A judge may and thebalanceof three-quartersshallbepaid as a monthlypension.
• (h) Clause 12 provides that pension accrue daily but shall be payable monthly in arrears fromtheConsolidatedFund.
• (i) Clause I3provides that a pension increase equivalent to the increase in the Consumer 5%or be less thanI%.The provisions of thePensions (lncrease) Act shall not apply
• Clause I4 sets the maximum pension payable at an amount not exceeding the amount of pensionable emolument earned by a sitting judge in the same position as that which the retired judge occupied onretirement.
• (k) Clause 15 provides for payment of death gratuity to the surviving spouse of a judge who dies before attaining the qualifying service.The gratuity is calculated at one month's pensionable emolument for eachyear of service. If the judge is survived by more than
• (1) Clause I6 provides for the computation of service gratuity as one-four-hundred-andeightiethoftheirpensionableemolumentsfor eachcompletedmonthofservice multipliedbyfive.
• (w) office because of inabilitytoperform thefunctions of the office due tophysical or mental incapacity. The pension payable shall not be less than fifty percent of the pension the judge would have been entitled to had the judge retired on attaining the retirement age.
• (n) Clause 18 provides for the pension payable to a spouse of a judge, who is entitled to pension, dies before attaining the retirement age and pension payable to a spouse of a retired judge.Thepension shall bepaid for5years after thedeathof the judgeorretired judge.
• (0) ClauseI9providesfortheequalsharingofthepensionamongthesurvivingspouses wherethedeceased judgeordeceasedretired judge is survivedbymorethanone spouse.
• (P) respecttoanyeligiblechildorchildrenofadeceasedjudgeoradeceasedretiredjudge. The rate of the additional pension payable will depend on the number of eligible children. However, pension in respect to an eligible child/children shall not be payable if the deceased retired judge entered into the marital relationship after retirement.
• (b) Clause 2I provides for the payment of pension to eligible child/children upon death of

• (r) of the office after serving as a judge for at least ten years but has not attained the mandatoryretirement age.
• (s) Clause23providesfornon-pensionbenefitsthataccruetoa judge uponretirement includingmonthlytransport allowancewhichshall bepayable asalumpsum,a medical
• (t) Clause24provides for thedefinitionof"judge"and"member"tomeana person appointedasa judgeafterthecommencementoftheAct.
• (u) Clause25establishestheJudges'RetirementBenefitsFundwhichshall be managed by aBoardofTrustees.Allcontributionsshallbepaid intotheFundwhilethepension benefitsshallbepaidoutoftheFund.
• (M) Clause26providesthatthegovernmentshalldeductasumcalculated attherateof 7.5% of the judge's monthly pensionable emoluments and pay the sum into the Fund as themember'smonthlycontribution.Thegovernmentshall alsopayinto theFunda sum calculatedattherateof15%ofthemember'smonthlypensionableemolumentsas government'smonthlycontribution.
• (W) Clause 27provides for a life insurance policy for each member whose cost shall be metby thegovernment.
• (x) Clause28allowsamember tomakeadditionalvoluntarycontributionstohisorher retirementsavingsaccount.
• (y) Clauses29-4Iof theBillmakesprovisionsontheestablishmentof theBoardof Trustees,composition of the Board of Trustee,qualifications for appointmentas a trustee.Tenureofofficeofthetrustees and thefunctionsoftheBoardofTrustees.
• (z) Clause42providesthatanadministratorshallestablishandmaintainaretirement savings accountforeachmember and thattheadministratorshall issuethemember an annualstatementofthemember'sretirementsavingsaccount.
• (aa) Clause43statesthatthebenefitsderivedfromamember'scontributionstogether withaccruedinterestshallimmediatelyvestinthememberwhilethebenefitsderived
• (bb) Clause44providesthatamembershallnotbeentitledtowithdrawthebalancein theirretirementsavings account except upon retirement from service.However,upon leaving employment,a member may withdrawhis or her contributions and any additionalvoluntarycontributions.
• (cc) Clause45providesthatamembershallbeentitledtomakewithdrawalswhenthey retireearlyoronmedicalgrounds.
• (PP) Clause46providesforthepaymentofretirementbenefits.Amembermaywithdraw a lump sum capped at one-third of the balance in the member's retirement savings

account.Theretirementbenefitsmayalsobepaidasincomedrawdownonmonthlyor quarterlywithdrawalsormonthlyor quarterlyannuityforlifepurchasedfrom a life insurance company.

• (ee)Clause47providesfor therequirementof amember tofurnishtheBoardwith particularsofthememberandparticularsof the dependantsof thememberwhich shall be used for purposes of processing and paying benefits.
• (f) Clauses 48 and 49 provide that upon the death of a member, the benefits shallbe paid to thepersonsnominated by the member and thattheBoardshall have discretionon choosingthemostsuitablemodeofpaymentof the dependant'sbenefits.
• (gg) Clause50providesforpaymentofbenefitsof amemberwhodiesinservice.The benefits shall be paid to either the dependants or the administrator of the estate of the member.
• (hh) Clause5lprovides for the terms of payment of benefits of amember whodies in retirement.Where the member had opted for an income drawdown, the member's dependantshallreceive apension thatisequivalenttotheunutilisedbalance andwhere the member had opted for annuity payment, the payment to the dependants shall be subjecttotheannuity.
• (ii) Clause 52 provides that the benefits payable on death of a member shall not form part oftheestateofthatmember.
• (i) Clause53prohibitspaymentoutof theFund tothegovernmentwithoutpriorwritten consentof theRetirementBenefitsAuthorityor toamemberwhilestill inserviceor to any person as a loan or advance except as provided under the Act or the Retirement Benefits Act.
• (kk) Clause55providesforadditionalbenefitsincludingamedicalcover,adiplomatic
• (I) Clauses56-65providefortheappointmentandfunctionsoftheadministratorof the Fund,appointmentandfunctionsofthemanageroftheFund,appointmentandfunctions of the custodian of the Fund, duty of care placed on the administrator, manager and custodian of the Fund and financial provisions including source of funds for the Fund, expenses ofadministeringtheFund,accounts andaudit,annualestimatesand annual general meeting.
• (mm) Clause66provides for additionalbenefitsincluding a medical cover,adiplomatic passport and access togovernment lounges in all airportswithinKenya
• (nn)Clauses67-72provideformiscellaneousprovisionsincludingfunctionsof the Cabinet Secretary, exemption from National Social Security Fund Act, appeal provisions. savingsandtransitionprovisions,

CHAPTERTHREE

3PUBLICPARTICIPATIONANDSTAKEHOLDERENGAGEMENTONTHE BILL

3.1Legal Framework onPublicParticipation

• 9.Article I18 (l)(b) of the Constitution provides that:

Parliamentshallfacilitatepublicparticipationandinvolvementinthelegislativeandotherbusiness ofParliamentanditsCommittees."

10. The National Assembly Standing Order 127 (3) and (3A) stipulates that:

"(3)TheDepartmentalCommitteetowhichaBilliscommittedshallfacilitatepublicparticipationon theBill through anappropriatemechanismincluding-

• (a)invitingsubmissionofmemoranda;
• (b)holdingpublichearings;
• (c)consultingrelevantstakeholdersinasector;and
• (d) consultingexperts on technical subjects.

(3A)TheDepartmentalCommitteeshall takeintoaccount theviewsandrecommendationsofthe public under paragraph (3) in its report to the House."

3.2MemorandaReceivedontheBill

• I1.Pursuantto the aforementionedprovisionsofthelaw,theCommitteeplacedanadvertisement in theprintmediaon27tJune2025(Annexure4)invitingthepublictosubmitmemorandaby way of writtenstatements on the Bill.Further,the Committee videletter referenced NA/DDClJLAC/2025/074dated30thJuly2025(Annexure5)invitedkeystakeholderstosubmit viewson theBill andattend apublicparticipationforumon7thAugust2025.

12. To this end, the Committee received oral and written submissions from twenty (20) stakeholders.Outof these,two(2) were oral submissions from the National Treasury and the InstituteofCertifiedPublicAccountantofKenya(ICPAK)whileeighteen(l8)werewritten memoranda from theKenya JudgesWelfare Association(KjWA),Judicial Service Commission (JSC),the Judges' Retirement Benefits Bill Taskforce, Office of the Attorney General and Department of Justice (AG), Law Society of Kenya (LSK),Kenya Law Reform Commission (KLRC),Kenya National Commission onHuman Rights(KNCHR),Office of the Controller of Budget,Public Service Commission (PSC),Salaries and Remuneration Commission(SRC), Kenya Union of Post Primary Education Teachers (KUPPET),Kituo cha Sheria,Uraia Trust, SeeTahTee Studio, Francis Sitati, Naomi Sitati, Wendy Faith Muganda LLM and John Angolo. Thememoranda are annexed tothisReportasAnnexure6.

• ofBudget,TheNational Treasury,SRC,PSC,KUPPET,LSK,ICPAK,KituochaSheria andUraia Trust attended the public participation forum on 7th August 2025 and gave their views on the Bill.
• 14.Furthermore, the Committee held further engagements with the Office of the Controller of Budget and the SRC on the Bill on 23rd October and 4th November 2025, respectively.

15. The KjWA, JSC, Judges' Retirement Benefits Bill Taskforce, AG, The National Treasury,ICPAK,KUPPET,SeeTahTee Studio,FrancisSitati,Naomi Sitatiand KNCHR, PSC, Kituo cha Sheria, Uraia Trust and John Angolo supported the Bill with additionalrecommendationswhiletheOfficeoftheControllerofBudgetandSRC expressedreservationsontheBill. 2. 16.They submitted as follows:

3.2.ISubmissionsinsupportoftheBill

17. The KJWA, JSC and the Judges' Retirement Benefits Bill Taskforce submitted memoranda in support of the Bill on the following grounds, that the Bill: 2. (a) is responsive to the contemporary realities not envisioned in the colonial Pensions Act; 3. (b) shall strengthen judicial independence by guaranteeing security in retirement; 4. (c) adopts a balanced transition to modern pension arrangements ensuring continuity for current judges whilst aligning new arrangements with the broader public sector reformsandfiscalprudence; 5. (d)provides for a realignment of pensionable emoluments allowing for a smoother income transition upon retirement and better reflects the financial realities of judicial life; 6. (e)provides for essentialpost-retirementbenefits forjudges inaccordancewiththe Constitution of Kenya, 2010; 7. recognizes the unique nature of judicial service including professional isolation and ethical obligations which subjects judges to extensive restrictions on conduct, lifestyle andspeech; 8. (g) provides for judges' pension benefits similar to comparable jurisdictions and in line withinternationalbestpractice;and 9. (h) aligns withthepensionreforms initiated through TreasuryCircular No.18of 2010 defined contribution. 18. Noting that the Bill does not raise any constitutional or legal issues and their involvement with the Judiciary and the National Treasury in the development of the Bill, the AG vide letter referencedAG/LDD/635/1/10dated7tAugust2025wasinfullsupportoftheBill. 11. 19.KUPPETalsosupported theBillinitsentiretyfor thefollowingreasons,that theBill: 12. (a)safeguards the dignity and wellbeing of retired judges; 13. (b)adoptstheinflation-basedpensionmodeltopreservepurchasingpower; 14. and 15. (d) uses a framework that could inform broader pension reforms for other vulnerable categories ofworkers. 16. 20.TheNational Treasury also expressedits supportof the Bill in itsentirety. 21. While supporting the Bill, SeeTahTee Studio, Francis Sitati, Naomi Sitati and Wendy FaithMugandaLLMnotedthattheBillwouldensureequal treatmentofall judges.

3.2.2 Submissions on Proposed Amendments

Clause2

• 22.KLRCproposed amending thedefinitionof'eligible child' toharmonize the agelimit for children at twenty-four (24) years to ensure consistency across pension schemes and reduce administrative complexity.

23. Kituo cha Sheria proposed refining the definition of 'eligible child' to better reflect criteria for disability-related incapacity in linewithArticle54of theConstitution.

• 24.PSC proposed amending the definition of'eligible child' to delete the words'and is not, for the time being, maintained out of money provided by the government in a hospital or a similar institution'. This is because the definition, as drafted, may amount to discrimination in view of theSocial HealthInsuranceFundwhere allpersonsinahospitalwouldbemaintainedoutof moneyprovidedbytheGovernment.
• 25.The Office of theController ofBudgetproposed restrictingthe definition of'pensionable emoluments'to basic salary for equity and harmony across the public service and to ensure fiscal sustainability in accordancewithArticle 230of theConstitution andSRC's advisories excludinghouseallowancesfrompensionableemoluments.
• 26.In its memoranda dated 25th July, 22nd September and 3rd November 2025,SRC proposed restricting the definition of'pensionable emoluments'tobasicsalary as set by the Commission forequity,harmonyandfairnessacrossthepublicservice.

CommitteeObservation

• 27.The Committee observed that thePublicServiceSuperannuationSchemeAct,whichprovides for retirement benefits to persons in the public service, defines "child" to include a child who undertakingfull-timeeducation.
• 28.In the definition of"pensionable emoluments",the Committee observed that the retirement benefits for judges are currently calculated onthebasis ofbasic salary,excludingallowances. Therefore,theretirementbenefitsofjudgesshouldalignwiththeprinciplesofequityand fairnessandshouldnotundermine theincomereplacementratioonretirement.Additionally, theCommitteenotedthatincludinghouse allowanceaspartofthepensionableemolumentsis in line with the National Retirement Benefits Policy which recognizes the importance of guaranteeinghousingtoretirees.

Clause3

• servingnopurpose.

CommitteeObservation

• 30.The Committee observed that the conflict oflaw clauseis necessary to avoiduncertainties about which law is applicable.

Clause6

31. PsC proposed reducing qualifying service from ten to five years to align with the proposals being made to reduce the qualifying service under the Pensions Act, Cap 189.

CommitteeObservation

• 32.The Committee observed thatcurrently,thePensionActprovides that the qualifying service available resources to meet pensionpayments.

Clauses8and9

• 33.Kituo cha Sheria noted that while the Bill refers to the Consolidated Fund,it does not sufficiently clarify the operational relationship with the Judiciary Fund.Thus,proposed amending the Bill to explicitly provide that, once approved by the National Assembly, the funds charged on the Consolidated Fund shall bepaid directly into the Judiciary Fund for administration to promotefinancialautonomyfortheJudiciaryandupholdtheprinciplesofseparationofpowers and fiscal independence.

CommitteeObservation

• 34.The Committee observed that Article I73 of the Constitution establishes theJudiciaryFund to be used for the administrative expenses of the Judiciary and such other purposes as may be 173(4) provides that upon approval by the National Assembly, the expenditure of the Judiciary shall be a charge on the Consolidated Fund and the funds shall be paid directly to the Judiciary Fund.Article 173 of the Constitution therefore already clarifies the relationship between the Consolidated Fund and the Judiciary Fund.

Clause10

35. KLRC proposed rewording sub-clause (l) to provide that the pension calculation formula should be prescribed in regulations for flexible adjustments based on changing economic realities. 2. 36.PsC proposed amending sub-clause (l) to reduce the qualifying service from ten tofive years inlinewithitsproposedamendmenttoclause6. 37. Kituo cha Sheria noted that sub-clause (3) restricts pension access for judges who leave office before attaining sixty-five (65) years contrary to Article l67(l) of the Constitution which provides forvoluntary retirement atsixty-five(65) years andmandatory retirement atseventy (70)years.Thus,KituochaSheriaproposedharmonizationof theclausesonqualifyingservice andbenefitaccrualwiththeseconstitutionalthresholds.

CommitteeObservation

• necessaryregulations.TheCommitteefurtherobserved thatsub-clause(3)restrictsaccess to benefits by a judge who leaves office before attaining the age of sixty-five years. It does not conflict with the provisions of Article 167(l) on retirement upon attaining the age of sixty-five years.

Clause13

• 39.KLRCproposed amending the clause toprovide forpension increases tobegoverned under oneregime,Pensions(Increase)Act Cap.I90,to avoid inconsistenciesandadministrative complexities across multiple mechanisms for pensions increases in the public service.
• 40.Uraia Trust proposed removing the pension increase cap in sub-clause (3) and replacing with a suitablepercentageincrease takinginto account long-term inflationneeds.

CommitteeObservation

• 41.The Committee observed that the Pension (lncrease) Act (Cap.I90) stipulates that pensions are tobe increased at therate of3%every twoyears.However,thisrate does notcorrespond with thefluctuating economicsituationmarked byvarying inflationrates.

Clause14

42. PsC proposed deleting sub-clause (2) as it would unfairly and unlawfully deny a person pension benefits that have lawfully accrued in a contributorypension scheme in the public servicefor thepreviousperiod of service of the person and amount to discriminationagainst aperson who previously served in the public service before appointment as a judge.

CommitteeObservation

• 43.The Committee observed that the provisions of Clause I4(2) are designed to allow consistency publicservice.

Clause19

• 44.Kituo cha Sheria proposed revising the fifty percent cap to allow for judicial discretion or specialconsiderationincasesofhardshipormultipledependantsinlinewithArticle43of the Constitutionandthebestinterestsofdependants.

CommitteeObservation

• 45.TheCommitteeobserved that capping therate ofpensionpayable to a spouse or spouses at fifty percent ensure fiscal sustainability. Also, a capped pension rate is meant to provide continuingfinancialsupportandavoiddoublebenefit.

Clause22

• 46.KRLC submitted that reference to'reorganization of office'in the clause is inconsistent with ArticleI67of theConstitutionprovisions onthe tenureof judges.

CommitteeObservation

47. The Committee observed that the Clause seeks to secure the retirement benefits of a judge who is forced to retire due to re-organisation of office and the judge has not attained the mandatoryretirementage.

Clauses 23

48. KLRC noted that replication of non-pension benefits in separate clauses is redundant and, therefore,proposed consolidation of clauses 23,55 and 66 in Part V on Miscellaneous Provisions titled Additional Non-Pension Benefits for good drafting. 2. 49.In its memoranda dated 22nd September and 3rd November 2025, SRC proposed amending sub-clause (l)(a) and (b) to provide that transport allowance and medical cover shall be as set

by the SRCpursuant to Article 230(4) and (5) of the Constitution which mandates the SRC to setandreview theremuneration and benefitsof judges andStateofficers.In theCommission's view,legislatingonmattersofremuneration andbenefitsmaylimittheSRCinexercisingits mandate.

CommitteeObservation

• 50.TheCommitteeobserved that theBillprovidesforretirementbenefitstothreecategoriesof judges, i.e., those in office before the commencement of the Act, judges appointed in office after thecommencementof theActandjudgeswhoretiredinaccordanceArticle167afterthe promulgation of the Constitution. The benefits of these categories of judges are provided in distinctparts and therefore,thenon-pensionbenefitsareprovidedforintheseparts,
• 51.TheCommitteefurtherobserved that theNational Assemblyismandated tolegislateon any matter having the force of law in Kenya, including pension. In exercise of this power,Parliament hasenacted thePensionsAct,thePublicServiceSuperannuationSchemeAct,theParliamentary PensionsAct and theRetirement Benefits(DeputyPresidentand DesignatedState Officers) Act.Indeed,the Committee noted that the County AssembliesPensions Bill (SenateBill No.14 of 2024) is currently under consideration by the National Assembly and SRC has submitted a Memorandum in support of the contributory pension proposed for Members of County Assemblies.

Clause25

• 52.TheOfficeoftheControllerofBudgetnotedtheneedforadetailedgovernance withRegulations39,79,80,81,82and83of PublicFinance Management Regulations toenhance transparency and oversight.

53. Additionally, the Office of the Controller of Budget proposed insertion of a sub-clause to provide for the Fund's disbursements to be subjected to approval by the Controller of Budget in accordance with Article 228 of the Constitution to ensure oversight over public fund withdrawalsandpreventunauthoriseddisbursements. 54. PsC proposed that Judges' Retirement Benefits Fund should be the body corporate not the Board of Trustees.

CommitteeObservation

55. The Committee observed that the Judges' Retirement Benefits Fund falls with the ambit of ""public money" as defined by the Public Finance Management Act. Therefore, the provisions of Judges'RetirementBenefitsFund. 2. 56.TheCommitteealsoobservedthattheCOBisconstitutionallymandatedtoauthorize withdrawalfromtheConsolidatedFund.However,withdrawalfromtheJudges'Retirement Benefits Fund does not require authorization from the COB. 57. On the Fund being a body corporate and not a Board of Trustees, the Committee observed that the Fund is a retirement benefit scheme whose management requires trust and confidence where the manager of the Fund is required to act in the best interest of the members. Therefore,making the Board of Trustees abody corporatewould ensure theresponsibilities are-carried-outeffectively.

Clause 26

• 58.PSC submitted that the staticdeductions of 7.5%and15%in sub-clause(1)would make it impossible to revise without amending the Act and as such disadvantageous to the Fund members.

59. LSK noted that the proposal lacks clarity on the specific penalty and thus raises enforceability concerns and thusproposed amending sub-clause 4 toprovide for a specificpenalty.

• 60.KLRC proposed the deletion of sub-clause (4) noting that the provision risks legal ambiguity, isunenforceableandundermineslegislativeclarity.

CommitteeObservation

61. The Committee observed that the penalty for non-payment of the contribution should be clear asisprovidedinthePublicServiceSuperannuationSchemeAct.TheActprovides thatfailure by thegovernmenttomakethemonthly contribution attractsapenalty attherateof thereturn of the Fund for the previous financial year shall apply on the unpaid amount.

Clause27

62. KLRC proposed deleting the clause as life insurance is an employment-related matter, not a retirementbenefitandwouldbebetteraddressedunderthejudges'currentemployment terms. 2. 63.In its memorandum dated 25th July 2025, SRC proposed the deletion of the clause as the Commission has set Group Life Insurance for judges as a separate benefit where dependants get the accrued benefits of a deceased judge within the provisions of the Retirement Benefits Actandtheschemerules.

CommitteeObservation

64. The Committee observed that the life insurance policy only applies to judges appointed after thecommencementoftheAct.

Clause29

• 65.PSC proposed deleting sub-clause (2) because the Board of Trustees cannot be a separate entity from theFund.
• stakeholder in the justice sector reforms.

67. PSC also proposed amending sub-clause (3) to replace the Cabinet Secretary with the Chief Justice to appoint themembersof the fund to maintainindependence of theJudiciary. Additionally, PSC noted that being an occupational scheme exclusive to judges, the membership of the Board of Trustees should be internal to the Judiciary. 68. Uraia Trust also proposed amending sub-clause (3) to provide for appointment of trustees independently through theJSCorbyvote among the judges to reduce executive control over judicial retirement funds andsafeguard judicial independence. 69. LSK also proposed amending sub-clause (4) to accurately reflect the intended subsection, ensure internal consistencywithin the Bill and upholdlegislative drafting standards.

70. KLRC noted the need for clarity on membership of the Board to Trustees by vested members only, hence, its proposal to amend sub-clause 3(b), (c) and (d) to specify that the judges be membersoftheJudges'RetirementBenefitsFundScheme. 71. In addition, KLRC proposed rewording sub-clause (4) to correct a typographical error. 72. Noting that the proposed pensions scheme is contributory, PsC proposed amending the clause to allowmembersof the scheme toelect theBoardof Trustees except theretiredjudge provided under sub-clause 3(e) who should be nominated by the Chief Justice.

CommitteeObservation

73. The Committee observed that a majority of members of the Board of Trustees are members of the Judiciary thus safeguarding judicial independence.

Clause30

74. KLRC noted that a blanket disqualification for any six-month sentence is overly restrictive and may unfairly exclude rehabilitated individuals. Thus, KLRC proposed amending paragraph (a) to linkthe disqualification torelevantcrimes involvingfraud,corruption or dishonesty to ensure asprovidedinArticleI0oftheInternational CovenantonCivilandPoliticalRights. 75. KLRC noted that subordinating a statute to administrative guidelines risks legal uncertainty and undermines statutory authority, hence, its proposal to amend paragraph (e) to replace 'directions, guidelines or different notes issues by the Retirement Benefits Authority' with 'provisionsoftheRetirementBenefitsAct'. 76. PsC proposed amending section 30 to correct a numbering error to replace section '30' with '29'.

CommitteeObservation

• 77.TheCommitteeobserved that therelationshipbetweentheBoardof Trusteesand the personwithacriminalconvictionhas demonstratedunreliabilitywhichundermines this fiduciary duty.

Clause31

78. PsC proposed replacing the trustees' term from three to five years to align with section 3 of the Retirement Benefits (Occupational Retirement Benefits Schemes) (Amendment) Regulations, 2025.

CommitteeObservation

• for other members of Board of Trustees including the Board of Trustees of the Public Service SuperannuationScheme.

Clauses 31(3), 32, 33(g), 37, 71(1) and 71(3)(a), (b)

• 80.PSCnoted that theBill relates to aninternal occupational contributoryscheme of the judicial arm of Government and thus proposed replacing'Cabinet Secretary' with'Chief Justice' to maintain independence of the Judiciary.

CommitteeObservation

81. The Committee observed that the Bill provides that the judge of the Supreme Court, the judge of the Court of Appeal and the two judges of the High Court are nominated by the Chief Justice.

Clause32

• 82.LSK proposed setting a specific timeline for filling of the vacancy to ensure certainty and mitigatetheriskofprolonged institutionalgaps.

CommitteeObservation

83. The Committee observed that prescribing a timeline may hinder the operations of the Board intheeventthetimelineisnotmet.

Clause36

• 84.KLRCproposeddeletingsub-clause(3)because theprovisionrisksarbitraryremoval and lacks clarity on enforcement, in particular, disqualifying a trustee for failing to disclose a conflict of interest is disproportionate since other remedies including recusal and penalties suffice.

CommitteeObservation

• 85.TheCommitteeobservedthat itisnecessarytodisqualifya trusteeforfailingtodisclose a conflict of interest.A trustee owesafiduciary dutytotheBoard and theFund andshould act solelyintheinterestof theFundandnotforhisorherpersonalgain.

Clause37

• 86.LSKproposedthatdeterminationof the trustees'allowancesbebasedonthe adviceof the SRCasmandatedunderArticle230(4)oftheConstitutiontosetandregularlyreviewthe remunerationandbenefitsof allStateofficersand advisethenationalandcountygovernments ontheremunerationandbenefitsofallotherpublicofficers.
• 87.KNCHRproposedamendingtheclause toalignwithArticle230(4)of theConstitution asread withsectionIIoftheSRCAct,Cap.412DwhichempowerstheSRCtoadvisethenational and county governments on the remuneration and benefits of all other public officers.

88. In its memorandum dated 25th July 2025, SRC proposed aligning the clause to the Retirement Benefits (Good Governance Practices) Guidelines issued by the Retirement Benefits Authority onTrusteesRemuneration.

CommitteeObservation

• 89.TheCommitteeobserved that themembers of theBoardof Trusteesmanage funds contributedbyjudgesandthegovernment.Therefore,thetrustees areregarded aspublic officerswhoseremunerationandbenefits arebasedontheadviceofSRCpursuanttoArticle 230(4)(b)of theConstitution.

Clause38

90. PsC proposed replacing 'Government' with 'Chief Justice' for specificity on which arm of the Governmentitisreferringto.

CommitteeObservation

91. The Committee observed that it is the government and the members who make contributions totheFund.Therefore,theBoardshouldbeaccountabletothegovernmentandthemember.

Clause40

92. PsC proposed amending the clause to replace*Cabinet Secretary may, in consultation with theSalariesandRemunerationCommission,determine'with'Boardwithapprovalof the members,determine'.ThisisbecausetheFundisacontributorySchemeanditsmembers should have the right and freedom to determine how it is managed. Furthermore, the Fund will notbeaStatecorporationwhosetermsshouldbe determinedonrecommendationbySRC.

CommitteeObservation

93. The Committee observed that the staff of the Board are appointed by the Board of Trustees andthereforetheir termsandconditionsofserviceshouldbedeterminedbytheBoardof Trustees.

Clause41

94. LSK proposed the including a subsection to provide that "The affixing of the common seal shall be authenticated by the signature of the chairperson of theBoard or any otherperson authorized by theBoardtoactinthatbehalf."

CommitteeObservation

95. The Committee observed that subclause (l) requires the seal to only be used in matters expresslyapprovedbytheBoard.

Clause42

• 96.KituochaSheriaproposedamendingtheproposaltorequiresemi-annualorquarterly accordancewithconstitutionalvaluesoftransparencyandaccesstoinformation.

CommitteeObservation

97. The Committee observed that pursuant to the provisions of Clause 56(1)(d), the administrator account and statements on demand. Therefore,this provision enables judges track their contributions and accrued interest effectively.

Clause43

98. PSC proposed deleting sub-clause (2); and deleting the words, 'subject to subsection (1)' in sub-clause (3). It was their view thatt the provisions would be discriminatory against judges as pensionableterms.

CommitteeObservation

99. The Committee observed that the provision on vesting of the government's contribution after a period-of-oneyearallows-fiscal sustainability.

Clause45

• 100.PsC proposed includinga new sub-clause (l)(d) to provide for the entitlement topension of amemberwhoisremovedfromofficeinaccordancewiththeConstitutionaspensionisaright andcannotbewithheldordeniedbyreasonofremovalfromoffice.

CommitteeObservation

• 101.The Committee observed that provision clearly outlines the manner in which a person who is entitledtopensioncanaccesstheirpension.

Clause46

• 102.The Office of the Controller of Budget proposed that all withdrawals from the Judges' Retirement Benefits Fund be made subject to approval by the Controller of Budget in accordance with Article 228(4) of the Constitution and prevent fiscal abuse or bypassing of lawful expenditure controls.

CommitteeObservation

103. The Committee observed that the COB is constitutionally mandated to authorize withdrawal from theConsolidatedFund andother specificfunds.However,withdrawal from the Judges RetirementBenefitsFund doesnotrequire authorizationfrom theCOB.

Clause52

104. Kituo cha Sheria proposed maintaining the exclusion of benefits from the estate to facilitate ensuringtransparencyand alignmentwiththedeceased'swishes.

CommitteeObservation

• 105.TheCommitteeobserved thatthemechanismfornominatingbeneficiariesisprovidedfor underClause48oftheBill.

Clause55

106. In its memorandum dated 25th July, SRC proposed the deletion of paragraph (a) on the provision of a medical cover on retirement awaiting the SRC's policy on contributions to postretirementmedicalschemesforStateOfficers. 2. 107.Inaddition,andvideitsmemorandadated22"dSeptember and3rdNovember,SRCproposed amending paragraph(a) toprovide that medical cover shall be as set by theSRCpursuant to Article230(4)and(5)of theConstitutionwhichmandatestheSRCtosetandreviewthe remuneration and benefits of judges andState officers.In the Commission'sview,legislating on mattersofremuneration andbenefitsmaylimittheSRCinexercisingitsmandate.

CommitteeObservation

• 108.TheCommitteeobservedthattheNationalAssemblyismandatedtolegislateonanymatter having the force of law in Kenya, including pension. In exercise of this power, Parliament has enacted the Pensions Act, the Public Service Superannuation Scheme Act, the Parliamentary Pensions Actand theRetirement Benefits (DeputyPresidentand DesignatedState Officers) Act.Indeed,the Committee noted that the CountyAssembliesPensionsBill(Senate Bill No.14 of 2024)is currentlyunder considerationby theNational Assembly andSRChas submitted a

Memorandum in support of the contributory pension proposed for Members of County Assemblies.

Clause56

109. PsC proposed inclusion of a new sub-clause (3) to give clarity on the terms of the Fund Administrator.

CommitteeObservation

• I10. The Committee observed that Clause 6l of the Bill provides for the expenses of administering the fund including the management fees.

Clause57

• Ill. The Office of the Controller of Budget proposed providing quarterly reports of all transactionsrelatingto theFunds totheAuditor-General inaccordancewiththeRetirement BenefitsAct.
• I12. PSC proposed including a new sub-clause (2) to give clarity on the terms of the Fund Manager.

CommitteeObservation

113. The Committee observed that the Clause 57(b) relates to the provision of quarterly reports of all transactions of the Fund to the Board. Additionally, Clause 62 provides for the preparation of books of account and auditing of the books of account to be conducted by a certified auditor. 2. I14. The Committee observed that Clause 6l of the Bill provides for the expenses of administering the fund including the management fees.

Clause58

115. PSC proposed including a new sub-clause (3) to provide clarity on the terms of the Fund Custodian.

CommitteeObservation

• I16. The Committee observed that Clause 6l of the Bill provides for the payment of expenses of administeringthefundincludingthecustodialfees.

Clause61

• I17. KLRC noted that five years of government-funded administration is excessive, as the Fund should be self-sustaining lilke other pension schemes and, therefore, proposed amending reducing the period to 'one year'.
• I18. The Office of the Controller of Budget proposed providing for administration of the Fund byanindependentBoardofTrusteesinsteadofsoleadministrationbytheCabinetSecretary or TheNational Treasury in linewithPartIVof theRetirementBenefitsAct.
• I19. PSC proposed amendment of sub-clause (3) for better clarity.

120. In its memorandum dated 25th July 2025, SRC proposed that sub-clause (1) be aligned to the provisions of theNational Treasury Circular dated10"July2024 thatguided that all retirement benefits schemeexpensesbemetoutof theSchemeFund andthe employeronlymeetsthe costs of setting-up-the scheme.

CommitteeObservation

• Fund ensures that the Fund operates efficiently until theFund becomes self-sustaining.

Clause62

122. PSC proposed deleting the words 'in accordance with the provisions of the Public Audit Act' toalign itwith other contributory schemesinthepublicservice.

CommitteeObservation

123. The Committee observed that the Public Audit Act (Cap. 412B) gives effect to the provisions ofArticle229oftheConstitutionwhichestablishestheOfficeofAuditor-General thatis responsiblefor auditingpublicfunds.

Clause66

124. The Office of the Controller of Budget proposed excluding retroactive extension of unbudgetedliabilities. 125. In its memorandum dated 25rh July 2025, SRC noted that Part IV excludes judges who retired before 27th August 2010 which may be reviewed as discriminatory. In addition, SRC proposed the deletion of the clause on provision of a medical cover awaiting the Commission's policy on 3. 126.Further,in its memorandum dated 22ndSeptember and 3rd November2025,SRCproposed amendingparagraph(a)toprovidethatmedicalcovershallbeassetbytheSRCpursuantto Article230(4)and(5)of theConstitutionwhichmandates theSRCtosetandreview the remuneration andbenefitsof judgesandState officers.IntheCommission'sview,legislatingon mattersofremunerationandbenefitsmaylimittheSRCinexercisingitsmandate.

CommitteeObservation

• 127.TheCommitteeobserved thattheBill isguidedbyArticleI60(4)of theConstitutionwhich requires anypensionsreforms that affect Judgesshould notvary the remuneration and benefits payable to a judge to their disadvantage.Article I60(4) requires judges who are in a Defined Benefits Scheme to remain in such a Scheme or for the components of the Scheme to be enhanced.

128. The Committee further observed that the National Assembly is mandated to legislate on any has enacted the Pensions Act, the Public Service Superannuation Scheme Act, the Parliamentary Pensions Act and the Retirement Benefits (Deputy President and Designated State Officers) Act.Indeed,the Committee noted that the County Assemblies PensionsBill (Senate Bill No.14 of 2024) is currently under consideration by the National Assembly and SRC has submitted a Memorandum in support of the contributory pension proposed for Members of County Assemblies.

Clause67

• 130.KNCHR proposed deleting the clause in its entirety because the functions had already been provided for under clause 33(f) where the Board of Trustees is mandated to ensure payment of pensions and other benefits to the members of the Fund and their dependents.

131. Uraia Trust proposed establishing an independent secretariat within the Judiciary for managing judges'retirementbenefits topreserve independencefrom the Executive and ensure an efficientJudiciary-ledbenefits administration. 132. In its memorandum dated 25th July 2025, SRC proposed amending sub-clause (1) to indicate the right person responsible for the management and administration of the retirement benefits undertheBill.

CommitteeObservation

• 133.The Committee observed that the functions of theCabinet Secretary are aligned with theroles of the Board of Trustee which includes paying pension and other benefits to the members of theFundasprovidedforunderClause33(f).

GeneralSubmissions

• officers in subordinate courts to promote equality and avoid institutional disparities.

135. Kituo cha Sheria proposed inserting a provision to provide that the remuneration and benefitsprovidedunder theActshallnotbevariedtothedisadvantageof anyjudgeorretired judge during their lifetime to reinforce safeguards for judicial independence and financial security.

• 136.Kituo cha Sheria alsoproposed a comprehensive review of the operative terms used in the Bill to ensure constitutional congruity and reduce interpretive uncertainty and litigation risk.
• 137.Further,Kituo cha Sheriaproposed introducingan internal mechanismwithin the Board to handle disputes before appeal to theTribunal, advancing fair administrative action.
• 138.Kituo cha Sheria also proposed the use of inclusive and gender-neutral terminology throughout the Bill.

139. John Angolo proposed application of the principle of proportionality to be applied to the DeputyChiefJusticewiththeotherJusticesoftheSupremeCourt.

• aligned to the existing government policy on retirement benefits as relates to the scheme design (defined contribution),contribution rate and entitled benefits.In the alternative,SRCproposed that judges' retirement benefits remain under the existing regime in the Pensions Act, Cap. 189 andtheWidows'andChildren'sPensionAct,Cap.195.Further thatpensionincreaseto continue as per the provisions of the Pensions (lncrease) Act, Cap.I90 until the relevant legislations are amended.

CommitteeObservation

• I41.TheCommitteeobservedthattheobjectoftheBill istospecificallyprovidefor and enhance retirement benefits for judges. The retirement benefits for other judicial officers are governed by thePublicServiceSuperannuationSchemeAct.
• I42.TheCommitteeobservedthatPart llof theBillprovidesfortheretirementbenefitsofjudges who are in office before the commencement of the Act. The retirement benefits of this category of judges must comply with the provisions of Article l60(4) which provides that the remuneration and benefits of a judge shall not be varied to the disadvantage of that judge.

4COMMITTEEOBSERVATIONS

143. Upon reviewing the Bill and the submissions received, the Committee made the following observations:

• (1) The Bill is guided by Article I60(4) of the Constitution which requires any pensions reforms that affect Judges should not vary the remuneration and benefits payable to a judge to their disadvantage. Article I60(4) requires judges who are in a Defined Benefits Scheme to remain in such a Scheme or for the components of the Scheme to be enhanced.
• (2) The retirement benefits for judges are currently prescribed under the Pension Act (Cap. 189) which came into operation on I" January 1946. The Act provides for a defined benefit ajudgeuponretirement.
• (3) ln20l0,thegovernmentundertookpensionreformsinthepublicsectorshifting the pensionschemesinthepublicsectorfrom definedbenefittodefinedcontributionschemes. Thepensionreformswere introduced through thePublicServiceSuperannuationScheme Act(Cap. 189A) which established the contributory public service superannuation scheme service.
• (4) The enactment of a separate legislation to provide for the retirement benefits of Judges has been under consideration for more than twenty (20) years. During this period, specific legislation has been passed and updated to provide for the retirement benefits of civil servants, Members of Parliament and designated State Officers. Judges have been long ignoredandaretheonlyStateOfficerslefttorelyontheoutdatedprovisionsofthe Pensions Act which is not responsive to the contemporary realities.
• (5) TheBill largely seeks to-—

7. (a)grantJudgesafairanddecentpensionthatassuresthemofadignifiedlifein retirementin appreciation of theirunique contributionsinpublic service; 8. (b) ensure that theposition of Judge retains esteem and continues tobe attractive to deservingmembers of thelegal profession; and 9. (c)maintain judicial independence by ensuring the financial security for judges upon retirement. 10. (6)The Bill provides for retirement benefits to three categories of judges,i.e.,those in office before the commencement of the Act, judges appointed in office after the commencement of the Act and judges who retired in accordance Article 167 after the promulgation of the Constitution. 11. (7)TheBillwasdeveloped inconsultationwith theNationalTreasuryandApprovedby Cabinet.Its actuarial costings as at June2024indicate that— 12. (a)In termsofaccrued benefits under thePensionsActCap.I89,the accruedpastservice liabilitywasKshs.4.27billion as at 30June 2024,for all prior service upto that date.In comparison, the accrued past service liability under the proposed Defined Benefit Section of theBill isKshs5.67billion as at30June 2024,for all priorservice upto that date. The proposed Defined Benefit Section of the Bill, which has improvements to the pensionbenefitsunder thePensionsAct adds KshsI.39billion to thepast service pensionliability. 13. (b)Intermsof theprojectedCashOutflowofAdditional Benefitsover thosePayableunder the Pensions Act,the projections show that over the nextfiveyears,the additional benefitsintheproposedDefinedBenefitportionoftheBillwouldbeapproximately

CHAPTERFOUR

Kshs. 395 million paid to 68 newly retired Judges and 19 already retired Judges over and above the benefits payable under the Pensions Act.

• (8) The proposal to have new judges appointed to office after the commencement of the Bill in a Defined Contribution Scheme is in keeping with the policy shift communicated through Treasury Circular No. 18 of 2010 which required all future retirement benefits accrual to be under a Defined Contribution (DC) scheme.
• (9) The Supreme Court comprises seven judges. Whereas the retirement benefits for the Chief Justice and Deputy Chief Justice are set under the Retirement Benefits (Deputy President and Designated State Officers) Act) the benefits of the other five judges are governed by the Pensions Act. This is despite the additional administrative duties the five judges perform alongside their judicial work, including oversight of security; Judiciary buildings and infrastructure; welfare of judges and staff; development of rules and regulations of the Court; training; and bar bench relations. The constitutional stature and workload of the five other Supreme Court Judges should be taken into account in the provisions of the Bill to entitle them to benefits them slightly higher than those of judges in other superior courts and below those of the Chief Justice and Deputy Chief Justice, for purposes of equity and proportionality.
• (10) The benefits provided for in the Bill do not extend to judges who retired before the promulgation of the Constitution in 2010. Noting that the judges in question are only six (6) in number, the Bill should be revised to accord the judges appropriate benefits.
• (11) Article 94(5 of the Constitution mandates Parliament to legislate on any matter having the force of law in Kenya, including pension. In exercise of this power, Parliament has enacted the Pensions Act, the Public Service Superannuation Scheme Act, the Parliamentary Pensions Act and the Retirement Benefits (Deputy President and Designated State Officers) Act.
• (12) 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. Since the establishment of SRC, the Commission has not taken any step to prescribe the pensionable emoluments of judges, the inclusion of a transport allowance and a medical cover as part of the benefits of retired judges. Even after publication of the Bill and as at the time of writing this Report, SRC is yet to take any formal step to address the issue of judges' retirement benefits and seems content with the provisions currently contained in the Pensions Act.
• (13) The National Assembly is currently seized of the County Assemblies Pensions Bill ( Senate Bill No. 14 of 2024 ). The Bill seeks to establish a pension scheme for Members of County Assemblies, which, if enacted shall result in additional funding for county assemblies to cover the 15% contribution by County Assemblies Service Boards from public funds as sponsors of the scheme. As advised by the Parliamentary Budget Office, passage of the Bill will occasion additional expenditures above the current recurrent budget ceilings for the county assemblies and require additional resources during the consideration and passage of the Division of Revenue Bill and the County Allocation of Revenue Bill. During the first year of the scheme alone, the 47 County Assembly Service Boards shall have to contribute approximately Kshs. 380 million to the scheme from public funds. The SRC has submitted a Memorandum in support of the proposed pension, which is inconsistent with the submissions the Commission has made on Judges' pension.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

CHAPTERFIVE

COMMITTEERECOMMENDATIONS

144. The Committee, having considered the Judges' Retirement Benefits Bill (National Assembly Bil No.27 of 2025) and the submissions from members of the public and stakeholders, recommends that theHouse considers andpasses the BillatSecond Reading,CommitteeStage and Third Readingwith appropriate amendments to incorporate the views of the publicandstakeholders,the Committeeand Members.

. 11. 02s'

SIGNED....

.DATE.

HON.GEORGEGITONGAMURUGARA,CBS,MP CHAIRPERSON DEPARTMENTALCOMMITTEEONJUSTICEANDLEGALAFFAIRS

DEPARTMENTALCOMMITTEEONJUSTICEANDLEGALAFFAIRS

ADOPTIONOFTHECOMMITTEEREPORTONITSCONSIDERATIONOF THEJUDGES'RETIREMENTBENEFITSBILL,2025

(NATIONALASSEMBLYBILLNO.27OF2025)

We, the Members of the Departmental Committee on Justice and Legal Affairs have, pursuant to Standing Order 199,adopted this Report of the Committee on its Consideration of the Judges'RetirementBenefitsBill,2025(NationalAssemblyBill No.27of2025)sponsored by the Leader of the Majority Party, and affixed our signatures to affirm our approval and confirm its accuracy, validity and authenticity:

1. Hon. Murugara George Gitonga, CBS, MP - Chairperson

2. Hon. Mutuse Eckomas Mwengi, OGW, MP - Vice Chair

• 3.Hon. Gladys Boss, MGH, MP

yMyaa

4. Hon. Farah Maalim, EGH, MP

5. Hon. Silvanus Osoro Onyiego, CBS, MP

6. Hon. Tom Joseph Francis Kajwang', CBS, MP

7. Hon. Muchangi Karemba, CBS, MP

WC

8. Hon. Timothy Wanyonyi Wetangula, CBS, MP

9. Hon. (Dr.) Otiende Amollo, SC, EBS, MP

10. Hon. Michael Mwangi Muchira, MP

11. Hon. Aden Daud, EBS, MP

12. Hon. John Okwisia Makali, MP

13. Hon. Stephen M. Mogaka, MP

14. Hon. Amina Udgoon Siyad, MP

15. Hon. CPA Suleka Hulbale Harun, MP