DIG Lagat fails to block case challenging his stay in office

The heart of the legal contest is an argument that Mr Lagat’s decision to step aside from office for 18 days to allow investigations into the alleged murder was equivalent to a resignation, though he denied stepping aside and said he was on administrative leave (not resignation).

Read: Lagat: “I took leave, I did not resign from DIG post”

Both the AG and Mr Lagat said this was an employment issue, which should be handled by the Employment and Labour Relations Court, not the Constitutional and Human Rights Division.

But Justice Chacha Mwita ruled that the High Court has jurisdictional power to hear and determine constitutional questions raised by the petitioner, rights activist Eliud Karanja Matindi.

“The issues raised in the petition do not include determination of an employer-employee relationship. The petition is related to an alleged violation of the Constitution. It challenges what the petitioner perceived to be a violation of the Constitution,” said Justice Mwita while overruling the AG’s objection.

“This court has express jurisdiction to hear any question on anything said to be done under the authority of the Constitution or of any law that is inconsistent with, or in contravention of, the Constitution.” The court observed that the petition seeks a determination of the legality of Mr Lagat’s decision to step aside from office and the appointment of his principal assistant, Patrick Tito, as acting DIG, Kenya Police Service.

“There is also the question of action or inaction by the National Police Service Commission (NPSC) and whether it acted within the law,” said the judge. The petition has drawn national attention as it touches on three critical issues: police command responsibility, constitutional interpretation of ‘stepping aside,’ and oversight of custodial operations.

Read: Albert Ojwang's death: State stands with DIG Eliud Lagat in court

This case proceeds amid heightened scrutiny of police conduct following several high-profile custody deaths in recent months.

In June this year, the chairperson of the Independent Police Oversight Authority (IPOA), Ahmed Issack Hassan, told Parliament, when questioned, that at least 20 people had died while held by police in the past four months.

In the last month, other civilian deaths have been reported at Komwamu Police Post in Migori, Mombasa Central Police Station, and at Kenol Police Station in Murang’a.

In his objection against the case, Mr Lagat’s legal team, led by advocate Cecil Miller, had contested the High Court’s jurisdiction to hear the case, arguing that the dispute falls within the internal mechanisms of the National Police Service.

The petition was triggered by DIG Lagat’s decision to step aside on June 16, 2025, to pave the way for investigations into his alleged involvement in the teacher’s murder at Nairobi’s Central Police Station.

Mr Lagat was linked to the murder because the arrest and subsequent killing stemmed from a complaint alleging that Ojwang had defamed him online.

Read: Albert Ojwang death: DIG Lagat moves to block murder case

In the petition, Mr Matindi argues that the “step aside was nothing and should be deemed to be a resignation since the move is unknown to the law”.

Mr Matindi says that by stepping aside, Mr Lagat conceded that he was unsuitable to carry out the functions of the office of DIG.

He petitioned the court to find that the stepping aside was equal to resignation and the DIG Kenya Police Service position should have been declared vacant.

“Mr Lagat is deemed to have resigned as DIG on June 16, 2025, in accordance with Section 12 of the National Police Service Act, having determined, on his own motion, that he could no longer lawfully discharge the functions of DIG. Mr Lagat himself conceded that he was unsuitable to carry out the functions of DIG,” says Mr Matindi. He accuses the National Police Service Commission of violating the Constitution in standing by and allowing Mr Lagat to “step aside” as DIG.

Also under court scrutiny is the legality of Mr Lagat’s move to appoint his Principal Assistant, Mr Tito, to serve as the acting DIG of the Kenya Police Service during his absence.

Read:DIG Eliud Lagat announces major reshuffle in police directorates

Constitutional crisis

Mr Matindi claims these decisions caused a constitutional crisis and administrative confusion within the National Police Service.

According to the petitioner, the appointment of Mr Tito effectively meant the National Police Service had two DIGs for the Kenya police unit, one substantive and the other acting, a scenario that is not contemplated in the Constitution.

But Mr Lagat, in his court papers, says he never stepped aside and his absence from office was to allow investigation by the Independent Police Oversight Authority (Ipoa) after public pressure over Ojwang’s death. Mr Lagat says his leave was approved by the Inspector-General of Police, Douglas Kanja.

“I categorically deny and rebut the allegations, insinuations and inferences drawn by the petitioner to the effect that I unlawfully relinquished or vacated my office as Deputy Inspector-General, or that I purported to appoint a successor, contrary to the Constitution or any written law,” says Mr Lagat in a replying affidavit.

Mr Lagat described the petition as legally unfounded and an improper use of court processes. The court is scheduled to hear the case on November 17.