The National Police Service Commission and Attorney-General Dorcas Oduor have jointly asked the court to dismiss a petition filed against him, terming it misplaced and legally defective.
Attorney-General Dorcas Oduor.
Photo credit: File | Nation Media Group
The AG, in a preliminary objection before Justice Chacha Mwita, argued that the matter falls outside the jurisdiction of the Constitutional and Human Rights Division of the High Court, stating it does not touch on a violation of rights.
On the other hand, the National Police Service Commission said the petition lacks merit and wrongly interprets Mr Lagat’s temporary exit from office as a form of resignation.
The commission said that Mr Lagat did not resign, but stepped aside on June 16 for 18 days in the interest of transparency as investigations into Ojwang’s death began.
"The decision by the first interested party (Mr Lagat) to temporarily step aside from his role as Deputy Inspector-General Kenya Police Service, as communicated in the letter dated June 16, 2025, was an act of accountability, restraint, and good governance, voluntarily undertaken to avoid any perception of interference with investigations," chief executive officer Peter Leley said in a sworn affidavit.
Teacher Albert Ojwang who mysteriously died in a police cell.
Photo credit: Pool | Nation
He said that Mr Lagat’s June 16, 2025, letter announcing his decision to step aside was not an admission of guilt or unfitness to serve.
"Nowhere does he state or imply unfitness to hold office. The decision to step aside temporarily pending investigations into the death of Ojwang was an administrative gesture rooted in principles of accountability and transparency, not a legal relinquishment of office," he added.
Ojwang died at Central Police Station in Nairobi following his arrest after Mr Lagat filed a complaint on alleged online defamation. However, the National Police Service Commission said filing a complaint cannot be used to assign blame.
"It is a constitutional right and duty for any person, including public officers, to report suspected criminal conduct to appropriate authorities. The events that may have subsequently unfolded following such a report are now the subject of independent investigations by the Independent Policing Oversight Authority (Ipoa). However, no credible evidence has been adduced to link the first interested party (Lagat) to any wrongdoing, and he should not be prejudiced merely for having exercised his lawful right to file a complaint," said Mr Leley.
The commission said that Ipoa has not named Mr Lagat as a subject of investigation, and no evidence has been tabled implicating him in either criminal or disciplinary wrongdoing.
The commission also addressed concerns over the assignment of duties to Mr Lagat’s principal assistant, Patrick Tito, during the 18-day leave period.
The petitioner, rights activist Eliud Matindi, also argued that assigning Mr Lagat’s duties to principal assistant, Mr Patrick Tito, during the 18-day leave period amounted to an illegal acting appointment.
But the commission disagreed. It said that Mr Tito only handled routine administrative functions and was not elevated to acting Deputy Inspector-General of Police.
"It was a legal and temporary internal mechanism for continuity of command and operational efficiency in the absence of Mr Lagat, and it did not create a new substantive office holder nor require the invocation of section 13 of the National Police Service Act," said Mr Leley.
"He (Mr Tito) was designated only to perform limited administrative functions temporarily for continuity of command during Mr Lagat's leave. This temporary arrangement did not elevate him to the status of the second in command nor as an acting Deputy Inspector-General,” he added.
No vacancy arose as a result of the temporary step-aside and thus the provisions of Article 245(3) of the Constitution and section 13 of the National Police Service Act concerning the appointment of a substantive DIG-KPS are not applicable".
Deputy Inspector-General of Police Eliud Lagat.
Photo credit: Dennis Onsongo | Nation Media Group
Court papers show that the decision of Mr Lagat to step aside was deliberated and ratified by the Commission in a special meeting held on June 18, 2025, at its office in CBK Towers, Nairobi.
The meeting was convened following a letter by Inspector-General of Police Douglas Kanja to the Commission informing it about the development two days earlier.
"The Inspector-General, who is responsible for the overall command of the National Police Service, tabled a motion before the first respondent (the Commission) at its meeting held on June 18, 2025, seeking to have Mr Lagat proceed on leave pending the conclusion of investigations. The first respondent duly noted and did not oppose the administrative action by the Inspector-General to grant leave as it did not amount to a resignation nor create a legal vacancy," says Mr Leley.
The case will be heard on July 31, 2025.
