The Court of Appeal has partially stayed a landmark judgment that stripped the National Police Service Commission (NPSC) of key human resource powers within the police service, setting the stage for an expedited constitutional appeal over who holds authority to promote and dismiss police officers in Kenya.
In a ruling delivered in Nairobi on February 27, 2026, a three-judge bench comprising Court of Appeal President Daniel Musinga, Justice Mumbi Ngugi and Justice George Odunga suspended the effect of portions of an earlier Employment and Labour Relations Court (ELRC) decision pending the hearing of an intended appeal filed by the Law Society of Kenya (LSK).
The appellate court ordered that the implementation of the ELRC judgment be stayed only to the extent that it granted the Inspector-General of Police and the National Police Service exclusive authority over the promotion and dismissal of members of the National Police Service (NPS). The judges clarified that the ruling does not temporarily return those powers to the National Police Service Commission, but instead freezes their exercise until the appeal is heard and determined.
The court further directed that the appeal be filed and heard on a priority basis within three months, citing the significant public interest and constitutional questions raised by the dispute. No order was made as to costs.
In reaching its decision, the court found that the intended appeal raises arguable and weighty constitutional issues, particularly concerning the interpretation of Articles 245 and 246 of the Constitution and the division of authority between the Inspector-General and the National Police Service Commission.
“The intended appeal is clearly arguable,” the judges held, noting that the dispute touches on separation of powers, the independence of constitutional commissions and the proper management structure of a national security organ.
The bench, however, declined to halt ongoing police recruitment and training processes, observing that the exercise had already been undertaken and training commenced, rendering a stay impractical. The judges emphasized that orders issued under Rule 5(2)(b) are intended to preserve the subject matter of an appeal rather than reverse decisions already implemented.
The court also dismissed preliminary objections challenging the Law Society of Kenya’s standing to file the application, ruling that under appellate rules any person who files a valid notice of appeal properly invokes the court’s jurisdiction, regardless of whether they were a party in the lower court proceedings.
The petition was filed by former Kilome MP John Harun Mwau, who challenged the legality of police recruitment conducted under the authority of the National Police Service Commission.
In its October 30, 2025 judgment, the ELRC declared that the Constitution vests independent command of the National Police Service in the Inspector-General and ruled that the Commission is not a national security organ under Article 239. Justice Hellen Wasilwa held that recruitment, training, deployment, promotion and dismissal of police officers fall exclusively within the operational command of the Inspector-General.
The court consequently nullified Legal Notice No. 159 of September 19, 2025 and permanently barred the Commission from undertaking recruitment or related human resource functions involving members of the police service, finding the recruitment advertisement unconstitutional.
The decision triggered a major institutional dispute between the Inspector-General’s office and the National Police Service Commission over control of human resource management within the police service, with observers warning that the ruling had far-reaching implications for governance of Kenya’s security sector.
The Law Society of Kenya, through its legal representative Duncan Okatch, moved to the Court of Appeal seeking to suspend implementation of the judgment, arguing that it effectively paralysed the Commission’s constitutional mandate and risked creating a constitutional crisis in the management of police personnel.
According to affidavits filed in support of the application, the society contended that allowing recruitment, promotion or disciplinary processes to proceed under potentially unconstitutional authority could undermine professionalism, transparency and merit-based administration envisioned under Article 246 of the Constitution.
In its ruling, the Court of Appeal acknowledged apparent constitutional overlap between the Inspector-General and the Commission, stating that the issues require careful interpretation during the full appeal hearing.
While declining to interfere with disciplinary powers such as suspension, citing potential risks to law and order, the judges held that temporarily freezing promotions and dismissals was necessary to avoid irreversible consequences should the appeal ultimately succeed.