Why Appeals Court has slammed brakes on IG's powers on police recruitment, promotions

Inspector General Douglas Kanja suffered a major setback on Friday after the Court of Appeal suspended a judgment that had granted him exclusive powers over police recruitment, promotions and dismissals in the country.

In a ruling delivered by a three-judge bench comprising Justices Daniel Musinga, Mumbi Ngugi and George Odunga, the court stayed an earlier decision of the Employment and Labour Relations Court (ELRC) pending the hearing and determination of an appeal lodged by the Law Society of Kenya (LSK).

The appellate judges stayed the ELRC judgment only to the extent that it declared the Inspector General and the National Police Service had exclusive and independent command over promotions and dismissals of police officers.

“We hereby stay the judgment of the ELRC made on October 30, 2025, in ELRC Petition No. E196 of 2025, to the extent that it declared that the Constitution vests in the National Police Service and the Inspector General the exclusive and independent command concerning promotion and dismissal of the members of the service,” the judges ruled.

However, the bench clarified that the stay does not revert those powers to the National Police Service Commission (NPSC).

Instead, the exercise of the disputed powers will await the outcome of the appeal.

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“For avoidance of doubt, we are not, by this ruling, reverting those powers to the National Police Service Commission. The exercise of those powers shall await determination of the appeal,” the court declared.

At the same time, the judges declined to suspend the Inspector General’s authority to discipline officers through measures such as suspensions, warning that such a move could disrupt command and discipline within the service and potentially lead to a breakdown of law and order.

"We are reluctant to suspend the powers to discipline by, inter alia, suspension of officers of the service, as that may lead to breakdown of law and order in the service," the judges ruled.

The appeal arises from a judgment delivered on October 30, 2025, by ELRC Judge Hellen Wasilwa, who held that the NPSC is not a national security organ under Article 239(1) of the Constitution and therefore lacks authority to conduct police recruitment.

Justice Wasilwa further ruled that the Commission has no mandate to assign, promote, suspend or dismiss members of the National Police Service.

Her decision effectively stripped the NPSC of its human resource functions and permanently barred it from advertising or conducting police recruitment, while nullifying Legal Notice No. 159 of September 19, 2025.

The ruling also cleared the way for Inspector General Kanja to proceed with the recruitment of 10,000 police officers.

The LSK, which was not a party to the original petition agreed by the decision, moved to the Court of Appeal on October 31, 2025, seeking to stay the execution of the ELRC judgment pending appeal.

The lawyer lobby group argued that the decision fundamentally undermined the constitutional mandate of the NPSC and threatened the entire human resource management framework within the National Police Service.

“That, unless the judgment of the Employment and Labour Relations Court is stayed, the processes of recruitment, appointment, promotion, removal, and dismissal within the National Police Service are likely to be undertaken by an organ that lacks constitutional authority to perform those functions,” the LSK submitted.

The Court of Appeal agreed that the appeal raises arguable constitutional questions and allowed the application for a stay.

However, it ruled that the recruitment of 10,000 police constables conducted in 2025 could not be reversed.

By the time the matter was argued on December 8, 2025, the recruitment exercise, initially scheduled for November 17, 2025, had already been concluded and training had commenced.

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“Where the decision sought to be appealed from has been executed, the Court ordinarily does not grant orders of stay since there is nothing to be stayed,” the Musinga-led bench held.

The case originated from a petition filed at the Labour court by businessman and politician John Harun Mwau, who challenged the NPSC’s authority to conduct police recruitment.

Inspector General Kanja and the National Police Service opposed the LSK’s application, arguing that the Society lacked locus standi because it was not a party to the original proceedings.

Kanja also cited urgent staffing needs, noting that no recruitment had taken place for three years due to natural attrition and that adequate numbers were required ahead of the August 2027 General Election.

The appellate court dismissed those objections, observing that the Court of Appeal Rules permit “any person” to file a notice of appeal.

In certifying the appeal as arguable, the court noted the apparent tension between Article 245(4)(c), which shields the Inspector General from direction in matters of employment and discipline, and Article 246(3), which grants the NPSC powers over recruitment, promotion and disciplinary control.

The court directed that the appeal be fast-tracked and heard within three months.

The final determination, expected before May 2026, will decide which institution, the NPSC or the Inspector General, holds constitutional authority over police human resource management.