The Court of Appeal has upheld a ruling barring the National Police Service Commission (NPSC) from recruiting police officers, holding that the responsibility falls to the National Police Service under the independent command of the Inspector-General.
The decision by Justices Patrick Kiage, Jamila Mohammed and Jessie Lesiit was delivered on 16 October 2026, following consolidated appeals by the NPSC and the Law Society of Kenya challenging a ruling by Employment and Labour Relations Court Judge Hellen Wasilwa.
The appellants sought to overturn Judge Wasilwa’s October 2025 ruling, which declared the 2025 recruitment regulations unconstitutional and permanently barred the NPSC from recruiting, training and performing other statutory functions concerning members of the Service.
In September 2025, the NPSC invited applications for police constables and issued Legal Notice No. 159 of 2025, containing the National Police Service Commission (Recruitment and Appointment) Regulations. Lawyer and former Member of Parliament John Harun Mwau led the challenge to the regulations, arguing that the Constitution did not empower the NPSC to recruit uniformed officers.
The respondents argued that the powers conferred on the NPSC by the Constitution, particularly under Article 246, gave it authority to recruit members of the police service, notwithstanding the Inspector-General’s independent command under Article 245.
The Court of Appeal disagreed, ruling that the Constitution distinguishes between uniformed members of the National Police Service and other employees.
“The Constitution makes a distinction between uniformed members of the National Police Service who are under the command of the Inspector-General and other employees who are employed to hold offices within the Service,” the Court said.
The Court held that the recruitment, appointment, promotion and transfer of personnel to offices within the National Police Service, other than positions occupied by uniformed members, fall within the jurisdiction of the NPSC.
“There is no ambiguity in the Constitution as far as the distinction between ‘members’ and ‘employees’ is concerned,” the Court said.
The Court also noted that the National Police Service is not among the organs listed in Article 239 as national security organs.
“The responsibility for recruitment and training of members of the National Police Service rests with the National Police Service,” the Court said. “As provided in Article 245, the Inspector-General has independent command of the members of the Service.”
The Court dismissed concerns that its ruling would lead to unchecked recruitment into the National Police Service or undisciplined policing, including abuses associated with past police corruption scandals.
“The independence of the Inspector-General is not absolute as he or she must perform duties prescribed by statute and in particular must uphold the provisions of the Constitution, including those relating to human rights and the rule of law,” the Court said.
The Court of Appeal left undisturbed Judge Wasilwa’s orders declaring Legal Notice No. 159 of 2025 unconstitutional and permanently barring the NPSC from recruiting, training and performing other statutory functions concerning members of the Service.
Inspector-General of Police Douglas Kanja welcomed the ruling, describing it as a victory for the Constitution of Kenya.
“The Court has demonstrated its understanding of the constitutional provisions relating to the National Police Service and has clarified some of the ambiguities occasioned by the misinterpretation of certain provisions by the Employment and Labour Relations Court,” Kanja said.
The ruling clarifies the respective roles of the NPSC and the Inspector-General in police recruitment, with the Court leaving in place the prohibition on the commission recruiting and training uniformed members of the Service.
– By John Murunga
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