Silvester Tom Masare v Cabinet Secretary, Ministry Of Defence & 6 others [2015] KEELRC 1639 (KLR)
The bottom line
#Kenya's High Court confirmed the Defence Council can set different retirement ages for different military ranks, dismissing a sergeant's constitutional challenge.
What this practically means
#Executive summary
#Key legal issues
#Whether the Defence Council's classification of retirement age by ranks was unlawful or unconstitutional
It was lawful; the Defence Council had power under Articles 241(5), (6) & (7) of the Constitution and Sections 243, 304 and 305 of the Kenya Defence Forces Act to make such regulations
The court read Articles 241(5), (6) and (7) with Sections 243, 304 and 305 of the Kenya Defence Forces Act, 2012 and found the Defence Council empowered to make regulations for the better carrying out of the Act and the good government of the Defence Forces. Section 30(1) imposes the statutory duty of making regulations. The petitioner bore the burden of proving unconstitutionality and failed to demonstrate any violation of Articles 2(2), 27, 47 and 50. Rank-based retirement ages are permissible within the 18-to-62-year band.
Whether the petitioner's rights under Articles 2(2), 27, 47 and 50 were violated
No violation was demonstrated; the petitioner failed to discharge the burden of proof
The court held that the burden of determining unlawfulness or unconstitutionality rests on the petitioner and that the court presumes lawful and constitutional conduct. The petitioner, a senior non-commissioned officer discharged at the mandatory retirement age of 54 as approved by the Army Commander, did not show how the regulations infringed the cited rights. However, the court observed that providing justification for differential retirement ages would further Article 47(2) objectives and Article 24(2)(a)-(b) requirements.
Whether the Defence Council should provide justification for differential retirement ages
Obiter: the Council should provide justification to the various cadres, and if none exists meeting Article 24(2)(a)-(b), it should reconsider the classification
Although dismissing the petition, the court observed that furnishing justification for different retirement ages per rank upon recruitment and during service would further the objectives of Article 47(2) and good, transparent governance of the armed forces. If no justification satisfying Article 24(2)(a)-(b) exists, the Defence Council should reconsider the classification in light of the Constitution.
Legal principles established
#- The Defence Council has constitutional and statutory power to make regulations for the good government of the Defence Forces, including prescribing retirement ages by rank
- The burden of proving unlawfulness or unconstitutionality of conduct by a public officer lies on the petitioner, and the court proceeds on the presumption of legality
- The Constitution must be read together with other laws made by Parliament and not construed disruptively of them
Court orders
#- 1.The Petition is dismissed
- 2.No order as to costs
- Jurisdiction invoked
- Articles 2(2), 3, 27, 47 and 50 of the Constitution; Article 47(3) conferring power to review administrative action
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Silvester Tom Masare v Cabinet Secretary, Ministry Of Defence & 6 others [2015] KEELRC 1639 (KLR)", Case Analysis (2015). Petition dated 28th November 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1639/eng@2015-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.