NAIROBI, Kenya — A constitutional dispute has emerged between the National Assembly and the Office of the Controller of Budget (CoB) over who should approve withdrawals from a proposed judges’ pension fund, raising fresh questions about fiscal oversight and judicial independence and threatening to delay long-awaited pension reforms.
At the centre of the disagreement is the Judges’ Retirement Benefits Bill, 2025, which seeks to establish a dedicated retirement benefits fund for judges of superior courts, replacing the current framework under the Pensions Act of 1946.
While the Controller of Budget insists that all withdrawals from the proposed fund must receive her approval to safeguard public finances, MPs argue that the fund falls outside her constitutional mandate.
Controller of Budget Margaret Nyakang’o has formally proposed amendments requiring that all disbursements from the Judges’ Retirement Benefits Fund be subjected to her office’s approval.
“The Office of the Controller of Budget proposes insertion of a sub-clause to provide for the fund’s disbursement to be subjected to approval by the Controller of Budget in accordance with the Constitution,” Nyakang’o said.
“This is to ensure oversight over public fund withdrawals and prevent fiscal abuse or bypassing of lawful expenditure controls.”
Nyakang’o anchored her position on Article 228 (4) of the Constitution, which mandates the Controller of Budget to oversee implementation of national and county budgets by authorising withdrawals from public funds. The provision bars approval of any withdrawal unless it is authorised by law.
However, the Justice and Legal Affairs Committee of the National Assembly rejected that interpretation, arguing that the proposed pension fund does not fall among the funds listed under Article 228.
“The withdrawal from the judges’ retirement benefits fund does not require authorisation from the Office of the Controller of Budget,” the committee said in its report, chaired by Tharaka MP Gitonga Murugara.
The committee maintained that the CoB’s mandate is limited to the Consolidated Fund, the Equalisation Fund, and County Revenue Funds, and does not extend to statutory pension schemes managed by trustees.
Under the Bill, judges will contribute 7.5pc of their salary during active service, while the government will contribute 15pc of each judge’s pensionable pay.
The State’s contribution will be charged directly to the Consolidated Fund, with retirement benefits paid out of the newly established Judges’ Retirement Benefits Fund.
Nyakang’o has also raised governance concerns, urging lawmakers to strengthen the Bill by introducing clearer rules on investment, fiduciary duties, and reporting standards in line with Public Finance Management (PFM) Regulations.
She further recommended that quarterly transaction reports be submitted to the Office of the Auditor-General, consistent with the Retirement Benefits Act, to enhance transparency and accountability.
The Bill, sponsored by Majority Leader Kimani Ichung’wah (Kikuyu), proposes a specialised pension regime for judges of superior courts, including annual pension adjustments capped at 5pc.
Article 162 (1) of the Constitution defines superior courts as the Supreme Court, Court of Appeal, High Court, and courts of equal status established by Parliament to hear employment, labour, and environment disputes.
According to the Bill’s memorandum, the reforms have been under discussion since the late 1990s and aim to align judicial retirement benefits with the Constitution’s principles on judicial independence.
The Bill is anchored on Article 160 (4) of the Constitution, which prohibits any reduction of judges’ remuneration or benefits and requires that judges in a defined benefits scheme either remain in it or benefit from enhanced terms.
Currently, judges’ pensions are governed by the colonial-era Pensions Act, which guarantees fixed retirement payouts.
The proposed law introduces expanded benefits, including post-retirement transport and medical cover, placing judges among the most comprehensively protected public retirees.
