The Court of Appeal partially suspended an Employment and labour Court judgment that declared the National Police Service Commission (NPSC) lacks constitutional authority to recruit police officers.
In a ruling delivered on February 27, appellate judges Musinga (President), Mumbi Ngugi and Odunga stayed the High Court’s declarations to the extent that they vest exclusive powers over promotions and dismissals of police officers in the Inspector General’s office, pending the hearing of an appeal by the Law Society of Kenya (LSK).
However, the court declined to stop the ongoing recruitment of police constables, ruling that the exercise had already been completed and training had commenced.
The case stems from a judgment delivered on October 30, 2025, by Employment and Labour Relations Court judge Hellen Wasilwa, who barred the NPSC from recruiting, training, employing, assigning, promoting, suspending, or dismissing members of the National Police Service.
Lady Justice Wasilwa declared that the Inspector General holds independent command over these functions without direction or control from the NPSC.
Dissatisfied, the Law Society of Kenya moved to the Court of Appeal, arguing that the judgment raised grave constitutional questions regarding the separation of powers and the delineation of mandates between the NPSC and Inspector General under Articles 245 and 246 of the Constitution.
Article 245(4)(c) states that no person may give direction to the Inspector General regarding the employment, assignment, promotion, suspension, or dismissal of any police member. Conversely, Article 246(3) vests in the NPSC the power to recruit and appoint persons to offices in the service, confirm appointments, and determine promotions and transfers.
In their ruling, the appellate court found that the intended appeal raised weighty questions of constitutional interpretation warranting appellate intervention.
They rejected preliminary objections that the LSK lacked standing, ruling that Court of Appeal rules permit “any person” who has filed a notice of appeal to invoke the court’s jurisdiction.
The court ruled that staying the completed recruitment exercise would be futile.
“We believe that no prejudice will be occasioned if, temporarily, the powers to promote and dismiss members of the National Police Service are suspended pending the hearing and determination of the intended appeal,” the judges ruled.
“We say so because once promoted or dismissed, the process of reinstatement or stripping of the ranks, in the event that the appeal succeeds, should be avoided.”
The court said it was not reverting those powers to the NPSC, but rather freezing their exercise pending appeal.
The National Police Service, through Inspector General Douglas Kanja Kirocho, had opposed the stay application, arguing that natural attrition had created a shortage of officers and that recruitment was urgent as the country approaches the 2027 general election.
The recruitment exercise in question was advertised for November 17, 2025, and has since been completed.
The first respondent, John Harun Mwau, had similarly opposed the application, arguing that the LSK was not party to the original proceedings and that the recruitment sought to be stopped was a new and distinct exercise from the one challenged in the lower court.
The Court of Appeal directed that the main appeal be filed and determined on a priority basis within three months, given the significant public interest involved.
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