A human rights activist has petitioned the High Court to examine the legality and constitutionality of Deputy Inspector-General (DIG) Eliud Lagat’s decision to “step aside” from office following his alleged involvement in the death of teacher Albert Ojwang.
Mr Eliud Karanja Matindi is also challenging Mr Lagat’s move to appoint his Principal Assistant, Patrick Tito, to serve as acting DIG of the Kenya Police Service during his absence.
In the suit, Mr Matindi claims these decisions have led to a constitutional crisis and administrative confusion within the National Police Service.
According to the petitioner, the appointment of Mr Tito effectively means the National Police Service has two DIGs for the Kenya police unit, one substantive and the other acting, a scenario that is not provided in the Constitution.
“Under the Constitution, there can only be one DIG, Kenya police service at any one time, whether appointed substantively or in an acting capacity. The charade of having a substantive and an acting DIG for the Kenya police service at the same time, is a gross violation of the Constitution by the National Police Service Commission (NPSC) and the Attorney-General as well as Mr Lagat and Mr Tito,” argues the activist.
He has sued the NPSC and Attorney-General Dorcas Oduor, while Mr Lagat and Mr Tito are named as interested parties in the petition. Other interested parties include the Law Society of Kenya and Katiba Institute.
Mr Lagat announced his absence from office by stepping aside from the DIG role on June 16, 2025, following public pressure over Ojwang’s murder at Nairobi’s Central Police Station.
He was linked to the murder because the arrest of Ojwang and the subsequent killing stemmed from a complaint lodged by him over alleged online defamation.
Mr Ojwang’s death in police custody continues to be the subject of extensive public debate and calls for transparency and accountability in determining how and why it happened and who, if anybody, ought to be held culpable.
According to activist Matindi, the stepping aside was nothing and unknown to the law, and it should be deemed as a resignation. He says by stepping aside, Mr Lagat conceded that he was unsuitable to carry out the functions of the office of DIG.
“Standing by and allowing Mr Lagat to 'step aside' as DIG, Kenya Police Service, the National Police Service Commission violated the Constitution. As Mr Lagat himself conceded, he was unsuitable to carry out the functions of DIG,” says Mr Matindi.
“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 own motion, that he could no longer lawfully discharge the functions of DIG,” he adds.
He further argues that Mr Lagat’s move to step aside lacks the legal backing because there is no constitutional or statutory provision that allows it to make that decision.
“Under the Constitution, National Police Service Act, or any other provision having the force of law in Kenya, there are no provisions which allow Mr Lagat to “step aside” as DIG, Kenya police service, after he determined, on his own motion, that it was untenable for him to discharge his functions as DIG, pending completion of investigations into the death of Ojwang,” says Mr Matindi.
He argues that the stepping aside was not based on any law and “was solely to serve Mr Lagat's personal and private interests and a complete betrayal of the public or official interests”.
“It offends the principles of good governance, integrity, transparency and accountability. The decision was inconsistent with the purposes and objects of the Constitution, failed to show respect to the people and honour to the nation and the office of DIG. It further failed to uphold the integrity of that office,” argues Mr Matindi in the court papers.
It is his case that the National Police Service Commission (NPSC) is required to carry out a recruitment process, based on fair competition and merit, to identify a suitable person to recommend for appointment as DIG.
The petition also accuses the Commission of abdicating its constitutional responsibilities and allowing Mr Lagat to determine whether or not he ought to be subject to disciplinary control and what sanctions, if any, he ought to face.
“It was not in Mr Lagat’s place to make that determination. It was, instead, the NPSC’s constitutional duty to make that call, as demanded by Article 246(3)(b) of the Constitution,” argues the petitioner.
Mr Matindi further argues that it was unlawful for Mr Lagat to appoint Mr Tito as the acting DIG. He wants the court to declare the move null and void.
“Mr Lagat had no constitutional or statutory powers to appoint any person to act as the DIG during his claimed absence from that office. That function is exclusively delegated to the NPSC in accordance with Article 246(3)(a) of the Constitution,” says Mr Matindi.
He adds: “It is also an unsustainable, imprudent and irresponsible use of public money and inefficient, ineffective and uneconomical use of resources, contrary to the Constitution. Public money is being used to pay the remuneration and benefits of Mr Lagat and Mr Tito, as the substantive and acting DIG, Kenya police service, simultaneously”.
The petitioner wants the court to nullify Mr Lagat’s decision to step aside and the appointment of Mr Tito, and declare that the NPSC failed to uphold the Constitution.
Also sought is a finding that the Attorney-General failed to fulfil its constitutional obligations by ensuring promotion, protection and upholding of the rule of law and defending the public interest.
“It is a matter of public notoriety that policing in Kenya is in a crisis, with daily reports of alleged breakdown of law and order, with resulting misery to the people and, in many instances, unexplained deaths of persons in contact with or in police custody,” reads the petition.
The case is pending hearing directions at the High Court in Milimani, Nairobi.
